CONTRACT LAW AND INTERNAZIONALIZATION OF FIRMS
Learning outcomes of the course unit
At the end of the Course the student should have acquired specific knowledge and skills related to:
- distribution and new technologies (e-commerce, digital platforms, smartphones apps);
- distribution agreements and contractual tools for the internationalization;
- e-commerce contracts;
- Negotiation techniques ;
In particular, the course is aimed to pursue the objectives below:
1.- knowledge and ability to understand the contractual typologies dealt with and the relevant applicable disciplines;
2.- learning ability;
3.- knowledge and understanding of the diversity of contractual typologies dealt with, as well as the skill of understanding the specific applications of each contractual typology;
4.- autonomy of analysis and skills of managing the main issues in negotiation;
5.- the ability to expose and discuss in public the topics dealt with in the lectures;
6.- Leadership and work planning skills (to be improved through team exercises based on predefined roles and goals);
7.- knowledge and ability to use the most advanced negotiation techniques;
8.- knowledge and understanding of techniques in drafting international contracts.
The course aims to analyze the characteristics, from a legal and contractual point of view, of the Commercial Distribution Agreements, through the study of the main types of contracts, typical and atypical, used in practice, nationally and internationally. Particular attention will be devoted to the analysis and the deepening of negotiation techniques, in international trade, with specific reference to the following profiles: the choice of the contractual typology, international safeguards, dispute settlement, choice of law, management of the"Country risk".
Before the beginning of the course, two seminars of 3 hours each, will be held for the preparation to the Course. The following topics will be dealt with in occasion of the seminars: contractual autonomy; freedom of contract Vs. freedom to contract; nominated / innominated contracts; right of exclusivity/non–competition; accidental elements of contracts, contingent condition/ subsequent condition; form of the contract, validity, termination, penalties
* date and hours of the seminars will be subsequently communicated;
** the attendance to seminars is strongly recommended.
Course contents summary
The course is aimed to analyse the characteristics of modern commercial distribution and contractual tools for the distribution of goods and services and for internationalization of firms. The study of nominate and innominate contracts will be accompanied by the study of selected cases, in orderto match the rigorous theoretical and dogmatic study of the contractual typologies, with the analysis of complex cases and relevant Courts’ rulings. The analysis of the subjects dealt with will be conducted in the light of domestic law as well as of EU law.
Alongside the traditional contractual figures, the new contractual architectures related to e-commerce and digital platforms will be analysed, as well as the new model of Sharing economy. The final part of the course will be dedicated to analysing and deepening the "negotiation" techniques in international trade.
Commercial Distribution Agreements: Commercial Distribution Agreements and antitrust law; E- Commerce, Data Protection Law, protection of the weaker party-The agency agreement-The Sales Concession Agreement; The franchise Agreement (Franchising); The Guarantees in the international sales contract (Personal / Bank guarantees); the international “Documentary Credits”;the Incoterms clauses, -The internationalization of Italian enterprises in the so called emerging countries (United Arab Emirates, China, India)- Joint Venture Contracts (contractual joint venture, the joint venture companies)- Licenses.
a) DISTRIBUTION CONTRACTS
Commercial distribution - direct distribution, indirect distribution, integrated vertical distribution - selective distribution - commercial distribution and antitrust law - weak contractor - consumer’s protection (consumer code) – unfair commercial practices - misleading advertising – general terms and conditions of Sale – Supply agreement – Agency.
B) CONTRACTS FOR INTERNATIONALIZATION
International Distributorship – Franchising - Master Franchising - License agreements
Some additional topics will be dealt with (not included in recommended texts) during lectures: International Distribution Agreement (International Warranties, Applicable Law, Settlement of Disputes) - Internationalization of the Enterprise in Emerging Countries (United Arab Emirates, China , India) - Joint Ventures .*
* For non-attending students, the exam will be limited to topics that are dealt with in suggested text books;
** In addition to the above , students (attending and non-attending) will have to choose and study 3 cases at their choice among those published in "Selected cases and materials for Contract Law and Internationalization Course" (2017-2018 edition). Selected cases will be available on ELLY Platform.
C) E-COMMERCE LAW AND DIGITAL PLATFORM
E-Commerce (consumer protection, privacy protection, the issue of "Profiling") - Digital platforms and Sharing economy - The UBER case - The eBay case *
* For this part, slides of lectures will be made available on ELLY Platform
- VV. AA., Commercial Distribution Agreements, directed by G. Villanacci, UTET, latest edition
- F. Moncalvo, The sale concession agreement, as part of the commercial distribution agreements, in NGCC, 2008, II, p. 93 -119 **
** The contribution will be made available online in PDF format
- F. Moncalvo, Selected Cases and Materials for Contract Law and Internationalization Course (2017-2018 Edition), containing the following cases and materials **:
The " Pirate Bay" Case
- EU Court of Justice, 14 June 2017 - Case C-610/15 Stichting Brein v Ziggo BV, XS4ALL Internet BV (File sharing platforms and copyright)
THE CORMAN-COLLINS CASE
- EU Court of Justice, 19.12.2013, C-9/12, Corman-Collins SA against La Maison du Whiskey SA, (Jurisdiction in matters relating to distribution contracts)
THE eBay CASE
- EU Court of Justice, 12.7.2011 - Case C-324/09, L'Oréal SA, Lancôme et al. Vs. eBay Int. AG;
- App. Napoli, 14 January, 2016
THE UBER CASE
-Court of Milan, ord. 26 May 2015, in Foro it., 2015, I, 2181 pp .;
- Court of Milan, Ord. 2.7.2015, Taxiblu Soc. Coop. Vs Uber Int. Holding BV
- EU Court of Justice, C-434/15 Asociacion Profesional Taxi v. Uber Systems Spain SL - Reference for a preliminary ruling from Juzgado Mercantil 3, Barcelona (Spain)
- Advocate General's Conclusions
THE ORACLE CASE
-EU Court of Justice, 3 July 2012, Case C-128/11 UsedSoft GmbH Vs. Oracle International Corp .;
THE Christian DIOR CASE
- EU Court of Justice, Case C-59/08, 23 April 2008, Copad SA v. Christian Dior couture SA;
THE PRONUPTIA CASE
-EU Court of Justice, 28.1.1986, Case C-161/84 Pronuptia de Paris Gmbh v Pronuptia de Paris I, Shilgalis;
THE AMAZON CASE
-EU Court of Justice, 21 April 2016, Case C-572/14 Austro-Mechana Gesellshaft GmbH v. Amazon EU SARL
(Selective distribution and on-line sales)
-EU Court of Justice, , 13.10.2011, Case C-439/09 Pierre Fabre Dermo-Cosmetique SAS v Président de l'Autorité de la concurrence
-Bundeskartellamt, January 26, 2016 (ASICS) **
- EU Regulation, April 20, 2010, no. 330/2010 on the application of art. 101 Paragraph 3 of the TFEU to categories of vertical agreements and concerted practices
- "Guidelines on vertical restraints" (Commission communication of 19.5.2010, 2010 / C130 / 01)
* the Knowledge of EU Regulation 330/2010 and of the Guidelines is indispensable
** The cases and materials will be made available online in PDF format via the Elly platform (the cases and materials listed above are provided in double language, Italian and English).
Roger Fisher, William Ury, Getting to yes. Negotiating an agreement without giving in, Random House, latest edition available *
* Because of the fact that the Section on Negotiation will be held in English, the use of the English version of the text book above is suggested.
Alternatively, may be adopted:
Roger Fisher, William Ury, Bruce Patton, L’arte del negoziato, Corbaccio, Milano, latest available edition.
- the Knowledge of general principles of Contract law is required. Suggested text books for this purpose are: M. Bessone, Lineamenti di diritto privato, Torino, latest edition; P. Trimarchi, Istituzioni di diritto privato, Milano, latest edition.
- Furthermore Knowledge of the Italian Civil Code and of the Italian Constitution, as well as of EU Treatises is required
- Contracts-commercial distribution, directed by G. Villanacci, UTET, last edition - F. Moncalvo, The concession contract of sale, in the context of contracts for commercial distribution, Nuova Giur. Civ. Comm., 2008, II, p. 93-119*
- *The contribution is be made available on-line in PDF format
- The course requires a good knowledge of the institutions of the general part of the contract. For the preliminary review of the topics should consult the following text:
-Outlines of Private Law, edited by Bessone, Giappichelli latest edition available.
- For exam preparation is essential to a civil code updated with the text of the Constitution and the main related laws.
48 hours in class *.
Lectures will be based on traditional frontal lessons and case studies (through the study of the most important Court Cases) in relation to topics discussed in class. Traditional method will be alternated with socratic-heuristic method, in order to stimulate the active role and participation of students and the dialogic method in finding solutions to the problems faced. The slides relating the subjects dealt with will be made available through ELLY platform. During the course, a Role-play based on digital platform issues will be carried out (the Role-play will be in Italian).
At the end of the course, will be held a simulation-game on negotiation involving teams of students in quality of negotiators. Before the negotiation game, there will be tutorial activities while after the end of the game a debriefing activity will be carried out in class on results of the game. The simulation-game on negotiation will be in English.
* attendance is strongly recommended
The course will be based on 48 hours of oral lectures.
Assessment methods and criteria
The final examination consists of oral exam based on answers on questions orally posed. Students shall have to choose 3 cases at their choice among the cases published on Elly platform.
With regard to Court cases, students (attending and non-attending) will have to choose and study 3 cases among those published on Elly Platform ("Cases and Materials Selected for the Course of Contract Law and Internationalization " 2017-2018 Edition will be made available on Elly platform).
The final examination aims at assessing whether the student has adequate understanding of the faculties faced during the lectures.
Final exam will be in Italian, except the part on negotiation that will be in English.
Students may opt for sustaining the whole exam in English.
The final exam is oral.