Control of unfair contract terms and social values: EC and Nordic approaches

The paper analyses the relationship between traditional market rational contract law and rules on the control of unfair contract terms. The question is asked to what extent Nordic and EC rules on such control express a radical departure from traditional contract values. As a background Nordic law is compared to the recently adopted EC Directive on Unfair Terms in Consumer Contracts. The most important differences are that individually negotiated contracts as well as the essential terms of the contract are excluded from the scope of the Directive, exclusions which have no counterpart in Nordic law. The abstract and static approach of the Directive also differs from Nordic thinking.As to the question of the impact of these rules, the paper first focuses on the possibilities of the contractual fairness principle functioning as an instrument for redistribution of wealth. The EC Directive does not include this aim, as the contract balance is expressly left outside the scope of the Directive. Nordic law, which contains more possibilities in this respect, has mostly focused on deviators. Not even this adjustment-friendly milieu has exerted any general influence on the prevailing balance between contractual performances in the market. The fairness principle contains other social values as well, such as autonomy, responsibility, freedom, fair consequences, access to justice, security, and social responsibility. Many of these values, which in the welfarist contract law are interpreted materially, are in their formal form central also to the market society, based on the rule of law. The fairness principle, as understood in the EC Directive, does not in any radical way upset the traditional values of contract law.

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Die Kontrolle unlauterer Geschäftsbedingungen und gesellschaftliche Werte: Die Ansätze der Europäischen Gemeinschaft und der Nordischen Staaten

Zusammenfassung Der Beitrag analysiert die Beziehung zwischen dem traditionellen marktrationalen Vertragsrecht und den Vorschriften gegen unlautere Geschäftsbedingungen. Er stellt die Frage, wie stark sich diese Regelungen der Nordischen Staaten und die der Europäischen Gemeinschaft von den traditionellen vertragsrechtlichen Prinzipien entfernen. Als Hintergrund wird das Nordische Recht mit der kürzlich verabschiedeten EG-Richtlinie über unfaire Bedingungen in Konsumentenverträgen verglichen. Der wichtigste Unterschied besteht darin, da\ individuell ausgehandelte Verträge ebenso wie essentienelle Bestandteile des Vertrages vom Anwendungsbereich der Direktive ausgeschlossen werden, ein Ausschlu\, der im Nordischen Recht keine Entsprechung hat. Der abstrakte und statische Ansatz der Direktive unterscheidet sich vom Nordischen Denken. Was die Wirkungen der Bestimmungen gegen unlautere Geschäftsbedingungen anlangt, so befa\t sich der Beitrag mit den Möglichkeiten des Prinzips der vertraglichen Fairne\ als Instrument für Wohlstandsumverteilung. Die EG-Richtlinie verfolgt dieses Ziel nicht, ebenso wie sie auch ausdrücklich das Prinzip des vertraglichen Gleichgewichtes nicht mit einbezieht. Nicht einmal aber das interventionistische Milieu des Nordischen Rechts hat irgendeinen allgemeineren Einflu\ auf das vorherrschende Gleichgewicht zwischen dem vertraglichen Marktergebnis beider Vertragsparteien ausgeübt. Hinter dem Fairne\-Prinzip stehen auch andere gesellschaftliche Werte, wie Autonomie, Verantwortlichkeit, Freiheit, Rechtsschutz, Sicherheit oder soziale Verantwortlichkeit. Viele dieser Werten werden im wohlfahrtsorientierten Vertragsrecht materiell interpretiert, sind aber in ihrem formalen Gehalt auch zentral für eine rechtsstaatlich fundierte Marktgesellschaft. Das Fairne\-Prinzip, so wie es die EG-Richtlinie versteht, stellt sich nicht grundlegend gegen die traditionellen Werte des Vertragsrechts.

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The paper was presented at the Fourth International Conference on Consumer Law in Buenos Aires, May 1993.     

严密国际买卖合同条款防止信用证欺诈

[案例] 某外贸公司与香港公司达成了一笔1019公吨镀锡铁皮和镀锌薄板,金额约20万美元的交易。支付条件为即期信用证,规定为2月和3月。不久,中国银行广州分行很快开出了信用证,规定了商品的名称和规格、数量、重量和装运期等。中国船运公司应托运人请求,向其发运了48个集装箱,供其装货和加封。3月24     

Impact of Retail Internationalization on Agribusiness: The Case of Ukraine

This article aims to reveal the impact of the retail internationalization process on the Ukrainian agribusiness. Building on an in-depth survey, we delineate major changes that occur owing to the process. Talking about global retailers, an essential part of their business is connected with selling high-quality products. Because (food) quality and thereby food safety processes are considered to be the highest priority, we concentrate on the agri-food business. Our interest in Ukraine is kindled by ongoing verticalization addressed by foreign retailers and imitated by local firms. As a result, overall quality improvements are observed.     

Manufacturing Site Location Preferences of Small Agribusiness Firms

This study examined the perceived importance of site location characteristics identified in a 1999 survey of 198 small Tennessee agribusinesses. Responding firms ranked proximity to buyers/customers, labor, and raw materials above other factors. However, the relative importance of all factors varied by industry subsector. For example, compared to food processing firms, textile milling and lumber/wood products firms perceived community incentives as less important. Projected firm growth and current location also affected the perceived importance of site location factors. The diversity of perceived factor importance across agribusiness subsectors supports the idea that incentives and promotion of site location factors to attract small agribusiness may need to be tailored to meet specific firms' needs.     

A question of ethics: Developing information system ethics

This study develops a pedagogy for the teaching of ethical principles in information systems (IS) classes, and reports on an empirical study that supports the efficacy of the approach. The proposed pedagogy involves having management information systems professors lead questioning and discussion on a list of ethical issues as part of their existing IS courses. The rationale for this pedagogy involves (1) the maturational aspects of ethics, and (2) the importance of repetition, challenge, and practice in developing a personal set of ethics. A study of IS ethics using a pre-post test design found that classes receiving such treatment significantly improved their performance on an IS ethics questionnaire. It appears to me that in Ethics, as in all other philosophical studies, the difficulties ... are mainly due to ... the attempt to answer questions, without first discovering precisely what question it is which you desire to answer. George Edward Moore, Principia Ethica [1903], preface. Eli Cohen is an associate professor of Management Information Systems at Bradley University, Peoria, Illinois. He received his Ph.D. from Indiana University and holds CDP, CCP, CSP and CDE certificates. He is also Midwest Editor for Government Technology Magazine.Larry Cornwell is professor of Business Management and Administration at Bradley University, Peoria, Illinois. He is the recipient of the 1988 Midwest Grain Teaching Award and has extensive consulting experience to industry. He received his Ph.D. from the University of Missouri at Rolla. He has numerous publications in statistics, mathematical programming, computer science and information systems.     

Service value revisited: Specifying a higher-order, formative measure

Recent marketing literature pays particular attention to customer value because of the potential impact on customer behavior and, ultimately, firm performance. Whereas some studies conceptualize customer value in a unidimensional manner, more recent approaches take a multidimensional approach, generally conceptualizing value as composed of various benefits and sacrifices. However, nearly all of these studies consider value components in a reflective manner, which is not only problematic but in many cases conceptually incorrect. In addition, recent customer value research includes service components to define and operationalize the construct. This study suggests that customer value in service contexts, or service value, represents a higher-order, formative construct with benefit and sacrifice components. Specifically, the authors propose a formative model of service value with four components: service quality, service equity, confidence benefits, and perceived sacrifice. A multiple-industry study substantiates the contention that this higher-order, formative approach best models value. The results theoretically and empirically support the conceptualization of service value with formative components, and the measure is robust and works well across multiple service contexts.     

How Institutions Influence SME Innovation and Networking Practices: The Case of Vietnamese Agribusiness

This paper addresses impacts of the institutional framework on small and medium‐sized enterprise (SME) innovation and networking practices. Through an explorative study of a domestic SME‐dominated sector in Vietnam, we find that the institutional framework limits incentives for long‐term investments, resulting in exploitative cost‐control strategies rather than product‐oriented innovation. Due to dominating social norms, SMEs form trust‐based friendship networks, potentially limiting knowledge acquisition and weakening business rationality. Institutional pressures reinforce negative influences on SMEs' incentives to develop innovation ambidexterity. The findings suggest that new institutional economic sociology provides a promising foundation for understanding how institutional frameworks influence SMEs' innovation practices in emerging economies.     

The business of ethics and the ethics of business

This is an essay in personal business ethics of executives as distinguished from the institutional ethics of corporations. Its purpose is to give practical moral guidance to executives for the conduct of their lives both as corporate decision-makers and as human beings. The pivotal concept in this model of personal business ethics is a direct appeal to the self-interest of executives in their being moral. Our thesis is that generally there is a twofold return on investment in ethics (ROIE) for executives. The first one is related to employee output: by becoming a self-actualizing moral type, executives indicate commitment to excellence. Accordingly, they so manage employees that the latter can also live up to their full potential and excell. And that would increase corporate productivity and product or service quality. The second payback of morality is personal: fully developed, self-actualized managers are generally happier people than those whose growth has been arrested. In brief, moral self-actualization is the same as commitment to excellence and there is a payback in being the best. Return on investment in ethics and return on investment in excellence can both be abbreviated as ROIE. We accomplish the purpose and establish the thesis of this essay by seeking answers to the following questions: What business does ethics have in business? What business does business have in ethics? Is there a return on investment in ethics for executives? and Does being moral help executives become more effective managers? In sketching answers to these questions, we first show why executives need a personal business ethics especially in today's world. Then, we sketch the nature of ethics and of business. After these introductory materials, the body of the paper argues for a personal business ethics for executives by correlating elements of management theory with ethics. Specifically, it links a theory of employee motivation with a scale of values, management character types with moral types, and management leadership styles with morality. Then, the practical technique of life by objectives (LBO) is explained. It can help executives manage their lives more effectively in both the business and ethical sense. We conclude by explaining ideals of excellence which can guide executives in their work and development both as managers and as human beings.     

Experiential ethics: A blueprint for personal and corporate ethics

There is a tendency to think of ethics as a universal body of principles governing human behavior. Richard R. Niebuhr challenges this universalist perspective by examining the development of human consciousness as an individual enterprise originating in immediate human experience. His conclusions lead us towards an understanding of conscience as likewise individual and experiential. It also enables us to identify a corporate consciousness or conscience which accounts for, yet prescinds, individual differences. In effect, Niebuhr's thinking in these matters provides us with a chart or blueprint for better ethical decision-making in business situations.Marist Father Patrick Primeaux teaches business ethics at Saint John's University, Jamaica, New York. He has a Ph.D. in Theology from Saint Michael's College of the University of Toronto and an M.B.A. from Southern Methodist University. In addition to business ethics, he is doing research and writing in the area of church management.     

Children's advertising: the ethics of economic socialisation

There is focus upon advertising and children for two broad reasons. First, it is because children are children, and are considered separately. Second, it is because children will become adults. Advertising therefore effects behaviour during childhood and continues to do so into adulthood. Advertising to children rarely receives a good press, and it remains a controversial topic in the wider domain. Is it responsible for poor diet? Does it make children pester their parents? Is there too much of it? And does Christmas have to start in September? Subsequently the issue has evolved to question whether there should be advertising to children, and if so whether it should be regulated. This discussion paper examines arguments for and against children's advertising, and concludes that whilst there are compelling arguments on both sides, advertising to children remains an economic necessity in need of adjustment and regulation.     

Managing organizational ethics: How ethics becomes pervasive within organizations

This study analyzes real experiences of culture management to better understand how ethics permeates organizations. In addition to reviewing the literature, we used an action-research methodology and conducted semistructured interviews in Spain and in the U.S. to approach the complexity and challenges of fostering a culture in which ethical considerations are a regular part of business discussions and decision making. The consistency of findings suggests patterns of organizational conditions, cultural elements, and opportunities that influence the management of organizational cultures centered on core ethical values. The ethical competencies of leaders and of the workforce also emerged as key factors. We identify three conditions—a sense of responsibility to society, conditions for ethical deliberation, and respect for moral autonomy—coupled with a diverse set of cultural elements that cause ethics to take root in culture when the opportunity arises. Leaders can use this knowledge of the mechanisms by which organizational factors influence ethical pervasiveness to better manage organizational ethics.     

Marketing ethics: Some dimensions of the challenge

We should seek an ethic internal to marketing arising from marketing's societal function, rather than imposing some add-on ethic. This suggests that marketing should enhance the information and the freedom the potential customer brings to the market transaction. Defining and achieving this information and freedom is difficult, but marketers suggest that the market itself drives out major violators, a suggestion less persuasive concerning increasingly complex goods and services. Marketing also is tempted to appeal to our baser, darker side. These problems are better addressed through self-regulation guided by a vision of advertising and business in the service of society, and by the marketer's own sense of integrity than through external regulation. Paul F. Camenisch is Professor and Chair of Religious Studies, DePaul University. His work currently concentrates in business, professional and medical ethics, in which he has published numerous articles and Grounding Professional Ethics in a Pluralistic Society (Haven Publications, New York, 1983).     

The ethics of insurance professionals: Comparison of personal versus professional ethics

This paper considers the level of ethics for insurance professionals for professional situations (measured with three insurance scenarios) compared to personal (consumer) situations (measured by Muncy and Vitell's 1992 Consumer Ethics Scale). The results of the study illustrate that there are significant differences in the ethical behavior of insurance professionals in professional versus personal situations. The authors found that insurance professionals are more likely to actively engage in unethical behavior in order to benefit professionally than in a personal setting. In general, however, the average respondent was unlikely or extremely unlikely to engage in unethical conduct. The managerial implications and need for future research in this area are discussed.K. L. Eastman is an Assistant Professor of Risk Management and Insurance at Florida State University. He received his doctorate from the University of Pennsylvania.J. K. Eastman is an Assistant Professor of Marketing at Valdosta State University. She earned her doctorate from Florida State University.A. D. Eastman is a doctoral candidate in Risk Management and Insurance at Florida State University.     

Business ethics: Defining the twilight zone

This paper examines the issue of ethics policy in organizations. While the actions of top management may be the single most important factor in fostering corporate behaviour of a high ethical standard, there should be policy where policy is needed. The perceptions of three managerial groups — top- marketing- and purchasing managers — are compared regarding firstly, whether they see a need for policy on a range of ethically contentious issues, and secondly whether they believe there is policy covering these issues in their own organizations. No significant differences between the three groups of managers were found, either with regard to their perceptions of needs for policy, or as far as the existence thereof is concerned. However, an overall comparison of need for policy and the existence of policy showed a significant difference on the scenarios presented to respondents. Furthermore, the study identifies grey areas of ethics in business where managers believe policy is needed, but is not perceived to exist. The use of an ethics policy matrix in organizations is suggested as a practcial tool for the examination of ethically contentious issues. Deon Nel is Senior Lecturer in Marketing in the School of Business of the University of Pretoria. His BCom (Hons) degree is from the University of Port Elizabeth, and his MCom (in Marketing) from the University of Pretoria. He is currently in the final stages of his doctoral study, and his papers have been published in the European Journal of Marketing, Industrial Marketing and Purchasing. Leyland Pitt is Senior Lecturer in Marketing in the School of Management at the Curtin University of Technology, Perth, Australia. He holds an MBA and a DCom in marketing from the University of Pretoria. His articles have appeared in journals such as the European Journal of Marketing, Industrial Marketing Management, The International Journal of Advertising, and The Journal of Business Ethics. Richard Watson is Head of the Department of Information Systems in the School of Business at the Western Australian College of Advanced Education. He holds a BSc and DipComp from the University of Western Australia, MAdmin from Monash University, and PhD in Management Information Systems from the University of Minnesota. His work has been accepted for MIS Quarterly and Large Scale Systems.     

Business ethics bogeyman: the perpetual paradox

Naive, impractical, moralistic—business ethics has been called a contradiction in terms. But despite the eloquent dismissal of Friedman and Drucker, business ethics is a subject that won't go away.     

The journeyman executive: The demise of the lifetime contract

“We have a great incentive system around here; make one mistake and you're fired.” Until recently, executives would have found no meaning in what is now a cliche. The traditional concept, however, of an employer-employee lifetime contract has under-gone discernible alteration since the 1950s. This article explores this growing trend toward “journeymen executives.” All the factors contributing to this new management lifestyle-fluctuations in the economy, demands for innovations, attitudes of employers, expectations of employees—are considered. The implications in the changes are explored and questions raised on how the new assumptions are working.