CONTRACT LAW, GLOBALIZATION AND DIGITAL MARKETS
Learning outcomes of the course unit
At the end of the course the student should have acquired specific knowledge and skills related to:
- principles of international contract law
- contract models for internationalization and the role of new technology (internet, technology platforms, apps)
- techniques for the protection of rights
- principles and techniques for the negotiation of international contracts.
In particular, the educational programme will be aimed at pursuing the following objectives:
1.- ability to learn the principles, concepts and institutes covered in class;
2.- knowledge of the types of contracts studied and the related applicable discipline;
3.- autonomy in analysis and ability to manage the main issues in contract negotiations;
4.- ability to present and discuss in public the topics and issues covered during the lessons, using technically correct and precise language;
5.- leadership and ability to organize and plan work, including preparation and development of role-plays as part of a team to be undertaken in class, based on predefined roles and objectives;
6.- knowledge and ability to use the most advanced negotiation techniques in contractual matters.
Course contents summary
The course aims to analyze the evolution of contract law, in light of the process imposed by the phenomenon of globalization and the technological revolution (internet, artificial intelligence), the latter linked to the breakthrough onto the markets of innovative start-ups and digital platforms, and new economic and negotiation models, among which, in particular, the so-called sharing economy. As we will see, new phenomena that present new requirements for the protection of fundamental rights and the safeguarding of the so-called "equity of contracts". In particular, the continuous overcoming of the barriers and the territorial borders of the markets will be analyzed (with the transition from the "globalized" contract, to contracts aimed at creating and operating virtual markets). In this perspective, changes of the same elements of the contract will be analyzed (for example, the emergence of new categories of contractors, such as the so-called prosumers, the substantial dematerialization of values of contractual exchange, through new forms of consideration, such as time, data, information, knowledge, with some references to the topic of cryptocurrencies, the impact of new technological means on the process of entering into a contract, the introduction of new methods of executing a contract, as in the case of the so-called downloading, the relationship between 3D printers and supply contracts). In addition, the study of contracts for integrated distribution and distribution networks (international distribution contracts, franchising contracts, joint venture contracts, license agreements) will be examined. Particular attention will be dedicated to the issue of contracts for the circulation of ideas and knowledge and for the protection of industrial secrets, destined to play a salient role in the context of the so-called knowledge and innovation economy: in particular, Research and Development Contracts and the so-called Non-Disclosure Agreements will be studied. A substantial part of the course will then be dedicated to e-commerce contracts, with the relative implications for the protection of users' personal data, in light of the new European discipline, and to the contract architectures of the technological platforms (with the study and a detailed consideration of, in particular, the Uber, Airbnb, Booking.com cases) together with the related underlying legal issues. The analysis of the aforementioned topics will be carried out on the basis of EU and internal, domestic legislation, supplementing the lectures with the case method, with an analysis of “live” law, through the jurisprudence of the European Court of Justice, the national courts, and the most important jurisprudential judgments at international level. The role of the independent Authorities (Antitrust Authority, Authority for the protection of personal data) will also be investigated, in the new contract law. At the same time, the study of the principles and techniques of negotiation, in contractual matters, in international trade will be introduced, highlighting the role of negotiation based on principles, as an instrument of efficiency and prevention of litigation.
- From “globalized" contracts to digital contracts, dematerialization of contractual exchange and new methods of execution of the contract. In particular, the Oracle case and the legal relevance of the so-called downloading. File-sharing platforms: The Pirate Bay case
- Contracts for vertical integrated distribution and creation of distribution networks. Distribution contracts; Franchising contracts; licenses. The principle of exhaustion and parallel imports. The Dior case; the eBay Vs. L'Oréal case. The Mc Donald's model and the Starbucks model compared
- Joint Ventures and strategic alliances for complex markets. Contractual Joint Ventures - Joint Venture companies.
- Contracts for the sharing of information and innovation and for the protection of business secrets and knowledge economy: research and development contracts (R & D); Non-Disclosure Agreements.
- Contracts and artificial intelligence. Supply contracts and 3D printers.
- E-commerce contracts. Nature and methods of entering into contracts Consumer protection: unfair terms, consumer forum. Protection of personal data. The new GDPR (EU Regulation No. 679/2016). Role of the Guarantor for the protection of personal data. The problem of profiling. E-commerce contracts and unilateral termination of the contract: the eBay case and the power to suspend the account.
- Digital platforms and contractual structures. The Uber case, and competition protection. The Airbnb case.
- Online Travel Agencies and equality clauses. The Booking.com case and the Expedia.com case.
- Incorrect commercial practices. Comparative advertising. Misleading advertising. Role of the Competition and Market Authority. The Jury of advertising self-discipline. The Booking.com case.
Metasearch platforms, rating and image protection. The Tripadvisor case.
- Vertical agreements and Antitrust law. EU Regulation 330/2010, general discipline. In particular, the distinction between active sales and passive sales. Non-competition clauses for the phase following termination of the contract. Selective distribution and competition law. The prohibition of online sales. The Pierre Fabre case. The ASICS case.
- Applicable law and settlement of disputes in distribution contracts. Dispute resolution and ADR. International arbitration
NEGOTIATION: What is negotiation. Negotiation of position and negotiation of principle. Role of the Harvard Negotiation Project. Batna and Reservation Value. Fundamental principles of negotiation. Complex and multi-party negotiations. The time factor in negotiations. Role of technical negotiation and international contracts.
MATERIALS AND RECOMMENDED TEXTS
- Lesson slides *
- F. Moncalvo, Cases and materials for the contract law, globalization and digital markets course *
* The Slides and the handout containing the cases and materials will be made available on the Elly portal in two languages, Italian and English.
Roger Fisher, William Ury, Getting to yes. Negotiating an agreement without giving in, Random House, latest edition available
For those wishing to take the exam in Italian the above text can be replaced by the following:
Roger Fisher, William Ury, Bruce Patton, L’arte del negoziato, Corbaccio, Milano, latest edition available
For the preparation of the exam, an up to date Civil Code is essential with the text of the Constitution, the European Treaties and the main related laws.
For the study of the general institutes, it may be useful to consult a manual of private law Institutions. Among the recommended manuals, we highlight: V. Roppo, Diritto Privato. Linee Essenziali, Turin, latest edition available .; AA.VV., Linee di diritti privato, edited by M. Bessone, Torino, latest edition available. For the subject of Italian private law institutions in English, we recommend: G. Iudica, P. Zatti, Language and rules of Italian private law. An introduction, Padova, latest edition available.
Traditional style lectures will be supplemented by the socratic heuristic method, to encourage the active role of the students, and by the dialogic method in the search for solutions to the problems faced. Particular importance is given to the study of case law, which will be presented to the class during the lessons.
For the preparation of the exam the slides from the lessons will be made available to the students (through the Elly portal). The slides will be provided in two languages (English and Italian).
During the course 3 role play tests will be carried out (Role-games), with in-class discussion of the results and analysis and debriefing by the professor.
The 3 role-plays will be undertaken in teams, and will consist, respectively, of role play tests on negotiation and simulated processes, on complex real cases.
The exercises will take place in English.
Assessment methods and criteria
Language: English / Italian
The programme and the materials for the preparation of the exam will be the same whether students choose to attend the lessons or not.
The final test aims to assess whether the student has adequate understanding of the institutions dealt with during the lessons. An adequate understanding is considered achieved when the student has shown knowledge and understanding of the institutes and subjects covered by the course, and is able to implement the correct interplay between the various parts of the programme. If he or she does not reach this objective the student will not pass the examination.
Notwithstanding the fact that the lessons will be entirely carried out in English, candidates will have the opportunity to choose whether to take the exam in English or Italian (to this end, all the materials for the preparation of the exam, including slides, cases and materials and the suggested text will be in double language, English and Italian).
Attending students (those students who have attended at least 80% of class hours are considered as such) will be given the opportunity to sit, during the course, a midway test on a part of the programme (which will be communicated during the lessons), subject to completion of the exam by way of the final exam (on the remaining part of the programme). Sitting the midway exam is optional (and not compulsory) for those attending students who have the minimum attendance requirements for the lessons specified above. Both the midway and the final examination will consist of an oral exam (the above-mentioned examination model applies to both the midway and final exams). For attending students who decide to take the midway exam, the final mark of the exam will be determined, after the candidate has also taken the final exam, based on the weighted average of the marks of the two exam parts (midway exam and final exam). In the event of a unsuccessful result in the midway exam, the candidate must take the final exam on the entire programme.
As said, the date of the midway exam, and the part of the programme subject to examination in the midway test will be communicated later, according to the programme carried out in class.
COURSE PREPARATION SEMINARS
Two 3-hour preparatory seminars will be held *, on the essential preliminary concepts of contract law that will then be examined in greater detail during the lectures.
* the dates and times of the seminars will be announced later via the Elly portal.