[What is a cost-benefit analysis?].

This thesis provides a functional, and justifiable application of the theory of the efficient breach of
contract within the commercial context. Limiting the theory’s application in this way is the primary
original contribution. This is because the theory of efficient breach has not been explicitly applied
solely to the commercial setting previously. This is legitimate because the underlying intention
behind commercial contracting is profit generation. As such, maximising the wealth which flows
from commercial contracts will be the focus of the parties involved. An additional original
contribution is that this thesis represents the first major discussion of efficient breach which applies
the theory to English law.

This thesis also makes additional contributions. A definition of “commercial” in a contract law
context is established to frame the discussion that is to follow. It is then outlined that the fundamental
structure of English contract law will remain the same whether a dispute concerns a commercial, or
a non-commercial contract. However, there is a difference in the approach of the court where rights
are pursued for commercial, profit driven reasons in contrast with rights that are of a personal nature.
Next, it is set out that in English law, promise is not the basis of contract. As such, the efficient breach
of commercial contracts cannot be discounted based on issues of morality which are linked to
promise breaking. Numerous other criticisms which have been directed at efficient breach are also
discounted.

Ultimately, a legitimate formulation of the efficient breach of commercial contracts is outlined. This
iteration is permissive, rather than mandatory. It provides efficient optionality, meaning that where
a party has the opportunity to breach efficiently, it will not necessarily take place. However, should
a party choose to breach, they will be justified. This is a departure from more prescriptive approaches.

Justifying the application of the theory of efficient breach specifically within the context of commercial contracting.

The long shadow of public policy; Barriers to a value-based approach in healthcare procurement

Recently more and more Public Sectors have been paying close attention to save cost and, at the same time, improve efficiency. Usually, the Construction Industry has a relevant annual turnover, which represents an important part of the GDP for most of the EU countries and concerns in a large part the Public Sector. Thus, some Public Clients, such as UK, are adopting new strategies in order to improve the current situation. One of these strategies is Building Information Modelling (BIM), which forces all the parties involved in the process to adopt a collaborative approach reducing inefficiencies. Moreover, also the European Parliament is going to encourage the BIM adoption to ‘modernise the procurement process and ensure greater efficiencies’. The EU Directive will be an important push to reform the EU Members’ Public Construction Procurement. The aim of this M. Sc. Thesis is to analyse the possible implementation of BIM within the Public Procurement, especially how Model Checking can be applied within Tendering to verify the compliance between the Client’s requirements and the bid’s contents. The first part presents both the most widespread Public Procurement Methods, such as Design-Bid-Build (DBB), Design-Build (DB), Construction Management (CM), Design-Build-Operate (DBO) and Design-Build-Finance-Operate (DBFO), as well as innovative kinds of Procurement Procedures, such as Integrated Project Delivery (IPD), Project Alliancing (PA), Cost Led Procurement (CLP), Integrated Project Insurance (IPI), Two Stage Open Book and Early BIM Partnering (EBP). A paragraph is dedicated to the drivers and the barriers of e-Procurement, which should be part of the Public Procurement strategy. Later, the main issues related to BIM are shown, such as current BIM Authorised Uses and Permitted Purposes, Interoperability and OpenBIM, along with BIM implementation in Public Sector of several countries (Singapore, USA, Finland, UK, Norway, Denmark, Netherlands, South Korea, Hong Kong, Australia, New Zealand, Iceland, Estonia, Sweden, Germany, China, Ireland, Taiwan and Italy) and the relation between e-Procurement and BIM. Additionally, the principal possibilities and challenges dealing with BIM adoption are presented. The following chapter is dedicated to the investigation of the possible BIM implementation in Tendering. Even if integrated procedures, such as IPD, seem to be the most suitable with BIM, a discussion of the BIM role in DBB and DB or Design Competitions is carried out, showing the main Client’s requirements, benefits for Bidders and Clients, together with limitations and possibilities. Thereafter, a paragraph illustrates Model Checking in the evaluation of design proposals. First, a short description of the main commercial software, which can support BIM-based tendering (such as Solibri Model Checker (SMC), EDM Model Server, dRofus, Affinity, dProfiler, Autodesk NavisWorks, Tekla BIMsight, Bentley Projectwise Navigator, Riuska, Autodesk Ecotect, EasyBIM, Vico Cost Planner and Mitchell Brandtman) is provided. Later, a list of the most common operations, which nowadays

The implementation of BIM within the public procurement: A model-based approach for the construction industry

The European Union (EU) 2020 Strategy aims at forming the conditions for smart, sustainable and inclusive growth targets. Assessment of the EU countries’ situation is of vital importance in attaining the EU 2020 Strategy. This paper presents an impartial evaluation of the performance of 27 EU member countries in terms of each EU 2020 Strategy. For the basis of the evaluation, we propose an effective and easily practicable measure for ranking and monitoring the countries according to their performance by using the VIKOR and the TOPSIS methods, multi-criteria decision making (MCDM) methods, which allows for the integration of the 22 indicators, and be capable of considering such a broad spectrum of criteria including various economic, financial, demographic, educational and innovational. Our study provides a comparative analysis of the above-two methods. The contribution of the study to the literature is that these methods can be applied for assessing countries in terms of the EU 2020 Strategy which have the multi–dimensionality targets. The results point out new EU member countries such as Slovenia and Romania have attained higher scores than many of the 15 EU countries.

Assessing Euro 2020 Strategy Using Multi-criteria Decision Making Methods: VIKOR and TOPSIS

InDret 1/2008 Francisco Marcos, Albert Sanchez Abstract1Tort Law is not harmonised at a European level. Substantive and procedural regulations vary substantially across EU Member States in most of the facets and dimensions of damages actions. These differences derive, amongst other causes, from different legal traditions. However, significant efforts are being made in order to find common ground for the approximation or even harmonisation of these laws across the EU –building on the Principles of European Tort Law and other projects, such as the European Code of Civil Procedure-. However, harmonisation of Tort Law and the corresponding Civil Procedure regulations is still open to debate and the process is envisaged to take a significant delay before any formal legal instruments are approved. Such regulatory diversity is inevitably reflected in the field of antitrust private enforcement –based on claims for harm inflicted as a result of the anticompetitive behaviour-, which the European Commission is trying to encourage and promote as a key element of the modernisation process of the EC antitrust rules undertaken in 2003. In this regard, a Green Paper on damages actions for breach of the EC antitrust rules was published in December 2005 with the purpose of opening up a reform process that could facilitate private damages actions across the EU. Most remarkably, the Green Paper put forward most of the divergences in national Tort Law and Civil Procedure regulations that jeopardize the effectiveness of a privately enforced competition system. These differences in national regulations contrast with the nearly-full de factoharmonisation existing in antitrust law and its public enforcement. Consequently, the Commission proposed harmonisation alternatives that imply deep reforms in national Tort Law and Civil Procedure regulations. Those proposals are to be developed and further analysed in a forthcoming White Paper –foreseen to be adopted around the turn of the year 2007-. At this stage, and before the Commission puts forward new harmonisation proposals, this paper analyses its need and adequacy and wonders whether the efforts of the Commission for the harmonisation of antitrust damages actions constitutes a “backdoor harmonisation” of fundamental aspects of Tort Law and Civil Procedure with much broader implications and effects in fields of Law other than antitrust.

Damages for breach of the EC antitrust rules: harmonising Tort Law through the back door?

EU Public Procurement: Modernisation, Growth and Innovation

Necesidad y sentido de los consejeros independientes. Dificultades para el trasplante al derecho de las sociedades cotizadas españolas

This paper provides a critical assessment of the implementation of Directive 2014/24/EU in the UK by the Public Contracts Regulations 2015. It explores the implications of the copy out approach followed by the UK Government in order to avoid gold-plating the transposition of the 2014 EU Public Procurement Package, as well as the deficiencies that result from the perspective of constructing a developed regulatory system. The analysis concentrates on selected novelties of Directive 2014/24/EU, as well as in areas where Member States were granted discretion to chose between a set of options or to find their own mechanisms to achieve certain aims specified at EU level. The paper concludes that the transposition in the UK was a missing opportunity to develop a full regulatory architecture for the control of public expenditure by means of procurement.

The implementation of Directive 2014/24/EU in the UK

Trans-EU collaborative procurement is a fertile ‘living lab’ for the observation, theorisation and critical assessment of developments in European public law. This paper maps the emergence of this novel type of cross-border administrative collaboration and scrutinises the new rules of Directive 2014/24/EU, which evidence the tension between promoting economic co-operation across borders within the internal market and the concern to respect the Member States’ administrative autonomy. The paper critically assesses the EU legislative competence in this area, extracts consequences for balancing trans-EU collaboration with ‘mandatory public law requirements’ at Member State level and proposes minimum functional guarantees to be expected in the implementation of trans-EU collaborative procurement.

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Albert Sánchez Graells

Papers

Damages for breach of the EC antitrust rules: harmonising Tort Law through the back door?

EU Public Procurement: Modernisation, Growth and Innovation

Necesidad y sentido de los consejeros independientes. Dificultades para el trasplante al derecho de las sociedades cotizadas españolas

The implementation of Directive 2014/24/EU in the UK

The Emergence of Trans-EU Collaborative Procurement: A 'Living Lab' for European Public Law