Learning objectives
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 technologies (internet, digital 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.- ability of critical analysis in relation to the topics covered in class;
6.- knowledge and ability to use the most advanced negotiation techniques in contractual matters;
7.-leadership and ability to work in team through role-plays and assignments that will be carried out by the class, based on predefined roles and objectives;
Prerequisites
- - -
Course unit content
The course analyses and deepens the role of the contract in the context of the new globalized and digital economy, characterized by the disruptive impact of new technologies and digital platforms, and by the affirmation of new economic models, among which, in particular, the sharing economy (in which, the Uber and Airbnb cases represent significant exemplifications), the so-called platforms economy (in which digital platforms with their sophisticated algorithms play a key-role, as in the case of search engines, social media, online travel agencies, app stores), and the "knowledge economy" to which knowledge, know-how, trade-secrets, collaborative research and development (aimed at innovation) are key and elevated to strategic assets, needing to be protected, at the regulatory level, as well as using opportune contractual instruments.
We will analyse, furthermore, the emergence of new legal categories, such as the so called “prosumers” (consumers who, through digital platforms, pose themselves as service providers), and the process of progressive dematerialization of contractual exchange (with the introduction of new forms of compensation, such as time, data, information, knowledge, crypto-currencies), as well as the impact of new technologies, robotics, and artificial intelligence on contracts (think, for example, to downloading, streaming, files sharing, or, again, to smart contracts and 3D printers, which introduce to innovative concepts of self-execution and self-production).
We will also investigate, then, the role of contract in e-commerce, as well as the contractual structures of digital platforms and mobile apps.
Phenomena, those indicated above, which, in addition to extraordinary opportunities of economic growth and efficiency, also entail the need for new forms of protection of the fundamental rights and the safeguarding of "contractual fairness", as well as the objective of fighting against new forms of abuses of dominant positions and inequalities (including those of a technological nature).
In this framework, we will investigate the key-role played by Regulators and independent Authorities (such, Antitrust authorities, Data protection Authorities, etc.), called to carry out a fundamental function of control and balance in the new context described above, characterized by the increase of information and contractual asymmetries, new forms of technological dependency, and serious attacks on fundamental rights.
Full programme
CONTENT AND COURSE TOPICS
GENERAL PART
- 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 – The ebay Vs L’Oréal case and the active role doctrine - The Oracle case.
- "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); the principle of "exhaustion" of intellectual property rights: The Pierre Fabre case – The Coty case.
- Contracts for company internationalization: master franchising contract; distributorship agreements; Joint Venture (JV); JV and mergers in antitrust law: Full-function JVs – The Dior Vs Copad case;
- E-commerce contracts: different e-commerce models: b2b, b2c; c2c; EU Directive n.31 / 2000; e-commerce contracts and contractual categories: formation of contract; e-commerce contracts as “at distance contracts”; consumers’ withdrawal rights; ecommerce and Data protection: the problem of "profiling" and cookies; the EU Regulation n° 679/2016 (GDPR).
- Online travel agencies (OTAS) and the booking online market: the role of online travel agencies; responsibility of the tour operator; travel agency responsibility; OTAs’ contractual structures and antitrust law: the problem of "parity" clauses; the Booking.com case, the Expedia.com case;
- Sharing economy and digital platforms: Sharing economy and its impact on traditional civil law institutions: the UBER case and the European Court of Justice ruling 20.12.2017 C-434/15, Elite Taxi Vs Uber Systems Spain SL; the Airbnb case;
- Platforms economy: the so-called "Platforms-to-Business" (P2B); EU Regulation n° 1150/2019: scope of application (social media and search engines as "digital platforms"); asymmetries of contractual power and transparency of contract terms and conditions; data protection; abuse of dominant position and protection of competition; consolidation of dominant position and barriers to entry: the so-called "Preventive Acquisitions"; platforms and "digital advertising"; the Google/Publishers case;
- "Knowledge Economy” and contractual structures: "trade secrets"; company know-how; Knowledge Economy and collaborative research; role of the WTO and art. 39 of the Trip Agreement; 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.
- Contractual autonomy and antitrust law: origins of antitrust law; the European Antitrust system Vs the US Antitrust model; role of the AGCM and consumers protection: restrictive agreements; abuse of dominant position; unfair business practices; misleading advertising - The Microsoft case; the Google / Android case;
- Antitrust law, copyright and concentrations: market trends towards concentrations and the role of antitrust systems; the AT&T / Time Warner case; the Siemens / Alstom case; the Bayer / Monsanto case;
- information rights and search engines: search engines and social media linking and copyright protection; the EU Directive n° 2019/790 ("Copyright Directive"). - The case Funke Medien GmbH; the case VG Media;
- Smart contracts, Blockchain, artificial intelligence, 3D printers and contract categories.
SPECIAL PART
Contractual negotiations and commercial contracts
- Negotiation (part I): the role of Harvard's PON and the theory of the principled negotiation; interest-based negotiation Vs position-based negotiation; the 4 fundamental principles of negotiation; information asymmetries and negotiation techniques
- Negotiation (part II): negotiation and leadership: negotiating in a situation of crisis, negotiating strategies and techniques; the Google Vs Publishers case under the lens of the theory of negotiation
- 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
- Negotiation (Part V): distributive negotiation vs. integrative negotiation; negotiation techniques aimed to "expand the pie"; underlying interests and relevance to the negotiation; definition of the so-called "bargaining range"; ZOPA (zone of possible agreement)
Bibliography
General Part
- F. Moncalvo Lesson slides
- F. Moncalvo, Contract law, globalization and digital markets: Cases and Materials (for short, “Cases and Materials)
-the SLIDES of the lessons will be published weekly on Elly, after each lesson;
- Cases and Materials, containing the selected cases on the topics of the lessons will be published on the Elly at the beginning of the Course;
The materials above will be published in two languages (English/Italian).
Special Part
Roger Fisher, William Ury, Getting to yes. Negotiating an agreement without giving in, Random House, latest edition available
For those students wishing to take 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, latest edition available
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.
Teaching methods
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.
During the course, will be carried out the following activities:
- Students Forums
- Negotiation Role-plays (based on international cases)
The exercises will take place in English.
STUDENTS FORUMS
It will be activated a Students Forum (TopicsBlog#) on topics covered during the lessons, through which students will be invited to deepen their knowledge of the topics and issues discussed, through the analysis of concrete cases, with students requested to analyse and discuss possible solutions.
ROLE-PLAYS
During the course there will be 3 negotiation Role-plays, some of them based on cases created by the most important international universities. The Role-plays will take place in groups (teams) and will be followed by debriefing by the teacher, with feedback to attendees on their conduct held in the Game and on the outcomes achieved.
Assessment methods and criteria
Oral exam.
Language: English / Italian
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.
The verification of students' learning (exam) is done through oral questioning.
In the continuation of the health emergency and depending on the evolution of the same, the exam may take place either in mixed mode (i.e., in presence, but with the possibility given to students, who request it, of taking the exam at a distance via the TEAMS platform for students), or only with online mode for all (at a distance, through the TEAMS platform) ***.
Of the chosen modality, among those indicated above, will be given timely information on the system esse3, in advance of the exam.
The grade will be expressed in thirtieths (e.g., xx/30).
The exam is oral and covers:
- the SLIDES of lectures (that will be made available to students on the ELLY portal);
- 3 cases chosen by the students from Cases and Materials (which will be made available on the ELLY platform)
- the part relating to Negotiation based on the textbook indicated in the section "Materials for exam preparation" above.
*** The modalities in which the exams are carried out may be subject to possible changes, according to the measures and provisions that may be adopted, also in light of the evolution of the health emergency. Students are supposed to regularly consult the Esse3 platform to learn about the applied exam procedures and modalities.
MIDTERM TEST
Attending students (students who have attended at least 85% of class hours in presence or video-presence through the platform used for distance learning) will have the opportunity to take an intermediate test during the course (the Midterm Test).
The partial test will focus on the SLIDES of the first 12 (lectures) lectures (lessons from 1 to 12, included). The cases and the parts concerning negotiation dealt with in the slides of the first 12 lectures will be part of the program of the Midterm Test.
The Midterm test will take place through an oral test (3 questions).
Candidates will have the opportunity to choose whether to take the exam in English or Italian.
The date of the Midterm test will be communicated at the beginning of the course.
The fact of taking the partial test is a faculty (and not an obligation) of the students attending, who have the minimum requirements of attendance above.
Candidates who pass the intermediate test will take the exam on the remaining part of the program:
- on SLIDES from the remaining lessons of the Course (lesson 13 and following);
- 3 cases, chosen by the candidates, among those published on the "Cases and Materials" pantry (available on Elly)
In this case, the final grade will be given by the weighted average between the partial test and the final test grade on the remaining part of the program.
In case of a negative result of the Midterm test, the candidate will have to take the final exam on the whole program.
Other information
PREPARATORY LECTURES FOR THE COURSE
Three two-hour preparatory lectures 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 hours of preliminary lectures will be communicated.
STUDENT/PROFESSOR MEETINGS
Students and thesis students have the possibility to book telephone appointments or TEAMS meetings with the teacher by sending an e-mail to fabrizio.moncalvo@unipr.it.
The teacher also receives the students at the end of the lessons.
The calendar of meetings for the period in which lessons are not held will be communicated later.
For information or clarifications on the organization of the course, on the modalities of the exam and on the topics dealt with in the lessons, it is possible to send requests or questions by e-mail to the same address above: fabrizio.moncalvo@unipr.it.
