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
- contractual models for internationalization and the role of new technology (internet, technological platforms, apps)
- techniques for the protection of rights
- principles and techniques for negotiating international contracts and for resolving disputes
In particular, the course will aim to pursue the following objectives:
1.- ability to learn the principles, the notions and the institutes presented in class;
2.- knowledge of the contract types studied and the relative applicable regulations;
3.- autonomy of analysis and ability to manage the main aspects of contract negotiation;
4.- ability to present and discuss in public the topics covered during the lessons, with technically correct and precise language;
5.- leadership and ability to organize and plan work, also through the preparation and participation in teams of role-games that will be carried out by the 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, this latter linked to the flood of innovative start-ups and digital platforms on the market, and new economic and negotiation models, among which, in particular, the "sharing economy". These phenomena, together with extraordinary opportunities for growth and efficiency, point to new requirements to protect fundamental rights and safeguard "contractual fairness".
In particular, students will have the opportunity to analyse the continuous overcoming of barriers and territorial boundaries of the markets (with the transition from the "globalized" contract, to With this in mind, the transformation of the same elements of the contract will also be analyzed (for example, the emergence of new categories of contractors, such as the so-called “prosumers”, the substantial dematerialization of the values of contractual exchange, through new forms of consideration, such as time, data, information, knowledge, the introduction of new performance of the contract methods, so-called “smart contracts”, the impact of blockchain and artificial intelligence on contractual matters, downloading and file sharing, the relationship between 3D printers and supply contracts).
Particular attention will be dedicated to the issue of contracts for the circulation of ideas and knowledge and for the protection of trade secrets, destined to play a salient role in the context of the so-called “knowledge and innovation economy”.
A substantial part of the course will be dedicated to e-commerce contracts, together with a study of the related implications on the protection of users' personal data, in light of the new European regulation, introduced by Regulation n. 679/2016 (GDPR), and to the contractual architectures of technological platforms (with the study and analysis, in particular, of the Uber, Airbnb and Booking.com cases). The study of the aforementioned topics will be conducted on the basis of both EU and domestic legislation, by means of lectures and the analysis of relevant case-law, taken from EU and international jurisprudence.
The role of the independent Authorities (Antitrust, Guarantor for the protection of personal data) will also be investigated under the new contract law.
In parallel, students will have the chance to study the principles and techniques of negotiation in contractual matters, in international trade, highlighting the role of negotiation based on principles, as an instrument of efficiency and for the prevention of litigation. In this area too, the lectures will be accompanied by case analysis. The salient role of the negotiation part is the role-games, which will be carried out during the course.
contracts aimed at creating and operating virtual markets).
- From distribution networks to digital platforms: the Mc Donald's case; direct distribution, indirect distribution, vertically integrated distribution systems; "selective" distribution; distribution 4.0 and the role of digital platforms.
- "Physical" networks, franchising; license agreements: the franchise agreement; the license agreement; Franchising Vs. Licensing: Mc Donald's Vs Starbucks; the Luxottica case, the Nokia-Huawei case; licensing Vs merchandising (the case of sports clubs); principle of "exhaustion" of intellectual property rights: the eBay Vs L’Oréal case and the "Active Role" doctrine; the Oracle case.
- Contracts for company internationalization: the master franchising contract; distribution contracts; Joint Venture (JV); JV and mergers in antitrust law: Full-function JV according to the European Court of Justice.
- Contractual autonomy and antitrust law: origins of antitrust law; the European Antitrust system; role of the AGCM consumer protection: restrictive agreements; abuse of dominant position; Antitrust and mergers; unfair business practices; misleading advertising; the Microsoft case; the Google / Android case; the Bayer / Monsanto case.
- E-commerce contracts: different e-commerce models: b2b, b2c; c2c; EU Directive n.31 / 2000; e-commerce contracts and contractual categories: contract conclusion; e-commerce contracts such as distance contracts and consumer withdrawal rights; privacy protection; the problem of "profiling", cookies; the EU Regulation n. 679/2018 (GDPR); the reform of e-commerce law in China; The Pierre Fabre case; the Coty case.
- Online travel agencies (OTAS) and the booking online market: the Booking.com case, Expedia.com; online travel agencies; responsibility of the tour operator; travel agency responsibility; OTAs and antitrust law: the problem of "equality" clauses; the prohibition of "equality" clauses: Law no. 124/2017 in Italy, the Loi Macron in France;
- Sharing economy and digital platforms: Sharing economy and its impact on traditional civil law institutions; the European Court of Justice ruling 20.12.2017 C-434/15, prof. Elite Taxi Vs Uber Systems Spain SL; The Eventech case; the Airbnb case, analysis of the contractual structures of digital platforms
- "Knowledge Economy” and contractual structures: "trade secrets"; Knowledge Economy and collaborative research; role of the WTO and art. 39 of the Trip Agreement and protection of confidential information; EU Directive 2016/943 ("Trade secrets") and tools for protecting trade secrets; knowledge economy contracts: research and development contracts (R&D Agreements); confidentiality agreements (Non Disclosure Agreements); the Roche / Novartis case.
- Smart contracts, Blockchain, artificial intelligence and contractual categories: Fairness Vs Efficiency
Contractual negotiations and commercial contracts
- Negotiation (part I): the role of Harvard's PON and the theory of the principle of negotiation; interest based negotiation Vs position based negotiation; the 4 fundamental principles of negotiation [in principle]; information asymmetries and negotiation techniques
- Negotiation (part II): negotiation and leadership: negotiating in crisis situations, negotiating strategies and techniques; review of the Uber Pop case from a negotiations perspective
- Negotiation (part III): negotiation and BATNA; BATNA and reservation value
- Negotiation (part IV): negotiate with the founder of an innovative start-up: the Google / Groupon case
- Lesson slides *
- F. Moncalvo, cases and materials for the contract law, globalization and digital markets course *
*The slides and lecture notes containing the case-law and materials will be made available on the Elly portal in both English and Italian.
Roger Fisher, William Ury, Getting to yes. Negotiating an agreement without giving in, Random House, latest edition available
For those students wishing to sit the exam in Italian, the above-mentioned textbook can be substituted for the following:
Roger Fisher, William Ury, Bruce Patton, L’arte del negoziato, Corbaccio, Milano, ult. ediz. disponibile
For the preparation of the exam an up-to-date civil code with the text of the Constitution, the European Treaties and the main related laws is essential.
For the study of general institutes, it may be useful to consult a manual of institutions under private law. Recommended manuals include: V. Roppo, Diritto privato. Linee essenziali, Torino, ult. ediz. disp.; AA.VV., Lineamenti di diritto privato, a cura di M. Bessone, Torino, ult. ediz. disp. For an explanation of institutions of Italian private law in English, we recommend: G. Iudica, P. Zatti, Language and rules of Italian private law. An introduction, Padova, latest available edition.
The traditional method of lectures will be accompanied by the Socratic heuristic method, in order to facilitate the active participation of students, and the dialogical method for problem-solving tasks. 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 lesson slides will be made available to the students (via the Elly portal). The slides will be provided in two languages (English and Italian).
During the course, at least 3 role-plays will be carried out, with class discussion of the results and analysis and debriefing by the teacher.
The 3 exercises will take place in teams and will be represented by role-plays through the negotiation of complex cases.
The exercises will take place in English.
Assessment methods and criteria
Language: English / Italian
The exam programme and materials are the same for both attending and non-attending students.
Notwithstanding that the lessons will be entirely carried out in English, the candidates will have the option of taking the exam in English or Italian (for this purpose, all the materials for the preparation of the exam, including the slides, the cases and materials and the text indicated for the part on negotiation will be in two languages, English and Italian).
The exam is oral and covers:
- the SLIDES related to the aforementioned topics that will be made available to students on the ELLY portal;
- 3 cases chosen by the candidate from the cases published in the Cases and materials lecture notes which will be made available on the ELLY portal
- the part relating to Negotiation based on the chosen textbook (see the section "Suggested materials and texts")MIDWAY TEST
Attending students (those considered to be students who have attended at least a percentage equal to 85% of the lesson hours) will be given the opportunity to take a mid-term exam after the first 6 lessons on the part of the programme covered during the course until the date of the midway test (first 6 lessons), subject to completing the exam by way of the final exam (on the remaining part of the programme).
Taking the midway test is optional (and not an obligation) for attending students who have reached the minimum attendance requirements of the lessons indicated above.
Both the midway test and the final exam will consist of an oral examination (the procedures indicated above apply to both the midway and final test).
For those attending students who decide to take the midway exam, the final grade of the exam will be determined, after the candidate has also taken the final exam, on the basis of the weighted average of the marks of the two parts (the midway exam and final exam).
If the midway test is unsuccessful, the candidate must take the final exam on the entire programme.
The date of the midway test will be communicated in due course during the lessons.
Three two-hour preparatory seminars will be held*, on the essential preliminary notions of contract law that will later be studied in-depth during the course lessons.
* the dates and times of the seminars will be communicated later via the Elly portal.