Learning objectives
At the end of the course, students should acquire the following skills and knowledge:
- principles of international contract law (online, offline)
- contractual models and the role of new technologies (internet, digital platforms, AI)
- fundamental rights protection
- principles and techniques of negotiation
- drafting contracts techniques
In particular, the teaching activity will be aimed at pursuing the following objectives:
1.- ability to learn the principles, notions and institutions dealt with in the lectures;
2.- Knowledge of the contractual typologies studied and relevant regulations;
3.- Knowledge and analysis of the regulatory-framework;
4.-Ability to analyze cases and case law concerning the topics analyzed in the lectures;
5.- Ability to analyze and discuss in public legal/contractual topics covered with technically correct and precise language;
6.- Capacity for critical analysis;
7.- ability to work in a team;
8.- autonomy of analysis and ability to manage the main critical issues in contract negotiations;
9.- ability to use the most advanced negotiation techniques;
10.- understand and develop the concept of leadership;
11.- ability to prepare and deal with complex cases;
12.- participation in the role play that will be organized during the course.
Prerequisites
NONE
Course unit content
The course analyzes and explores the role of contracts in the digital and data-driven economy, characterized by the strong impact of new technologies, digital platforms, and AI. These factors, which are disrupting most traditional business sectors, are imposing accelerations and substantial changes, offering - at the same time - new opportunities in terms of internationalization and business exploitation.
We will analyze the role of contracts in the “green” transition and the so-called circular economy. Moreover, we will see how, even in such a complex framework, contracts and contract law show an unsuspected vitality and capacity to adapt to different socio-economic paradigms, maintaining the role of a fundamental engine in our lives and modern economics.
We are also witnessing a broadening of the spectrum of goods and rights that are the subject matter of contracts, increasingly open to the valorization and/or protection of intangibles, such as, data, digital contents, trade secrets, know-how (as testified by the increasing role of the contracts of the knowledge economy, such as NDAs and/or R&D Agreements).
We will face, at the same time, the problem of the creation of ‘dominant positions’ in many sectors (e.g., the case of big tech), leading to the risk of abuses, harming competition in several sectors of business, with always more frequent cases of markets dominated by the ‘winner-take-all ‘rule. In such a complex scenario, the role of regulators and supervisory authorities becomes key, given the risks of inequalities, abuses, and competition distortions. We will face, at the same time, the problem of the creation of ‘dominant positions’ in many sectors (e.g., the case of big tech), leading to the risk of abuses, harming competition in several sectors of business, with always more frequent cases of markets dominated by the ‘winner-take-all ‘rule.
The dominant role of “tech giants” also poses new challenges to antitrust law due to their tendency to create 'barriers to entry' for newcomers.
In this tricky scenario, together with the role of contracts and contractual autonomy, it will be significant to analyze the theory of Principled Negotiation based on interests and merit, as opposed to a model of Negotiation focused on position, in the light of a new theoretical approach to Negotiation aimed not only at the objective of the conclusion of agreements but also at the pursuit of more economically and socially efficient agreements. From this perspective, efficient distribution of resources, sustainability goals (ESG), and safeguarding natural resources become fundamental goals to achieve. We will also investigate the function of Negotiation based on interests, as an efficient toolkit for dispute prevention.
Full programme
GENERAL PART
What is contract? Contract formation
Contract, offer, and promise. Formation of contract - International contracts - Digital contracts - Fairness vs. Efficiency in contractual matters. Negotiation asymmetries, and abuses of dominant position.
Contractual autonomy and its limits
Contract and the Constitution - Contract and inequalities - Contract and 'weak' contractors: e.g., consumers - Contract and abuse of 'economic' dependence - Contract and competition - The 'imposed' contract, the 'mandatory' contract. The case of compulsory licenses.
Contract and "Integrated" Vertical Distribution
The EU Vertical Block Exemption Regulation (VBER) 2022 Contract and "integrated" vertical distribution - The VBER 2022: scope, functions, and objectives - dual distribution - online brokerage services - Parity Clauses and other MFNs - Hardcore restrictions - non-compete clauses - Exclusive distribution - Selective distribution. - The problem of online sales restrictions.
Contract and cross-border networks (Part One)
Franchising: an initial definition - International circulation of contractual models and Franchising entrenchment - Typicality vs. atypicality - Contractual networks and protection of the weaker contracting party – Mono-brand franchising, Corner franchising - Master franchising and internationalization - Exclusivity, non-competition, and restrictions on competition.
Contract and cross-border networks (Part two)
Licensing - definition - Licensing Vs Franchising - the Starbucks case, the Luxottica case, the Nokia case - object of the license - licensing vs merchandising - royalties - minimum guaranteed turnover clauses - exclusive/non-exclusive licenses - licensing, the principle of 'exhaustion' and exceptions: the ebay case, the Dior case.
Online contracts. Contract and virtual reality: the case of Metaverse
The Online Contract (e-commerce): contract conclusion, public offers, contracting by adhesion, forms and 'point and click' technique - E-commerce contracts as distance contracts and the consumer's right of withdrawal; privacy protection: the EU Regulation no. 679/2016 (GDPR); the problem of 'profiling', cookies as profiling tools; the Metaverse and Blockchain, NFTs and intellectual property protection - Metaverse and biometric data.
Contracts and Tourism: Online Travel Agencies (OTAs) and their contractual structures
The role of OTAs in the ‘tourism service market’: changing models and paradigms for the entry of 'technological' operators in the tourism sector and online bookings - The contractual structures of OTAs - OTAs and MFN clauses ('parity' clauses) - OTAs and competition law.
Contracts and Collaborative Economy
What is a Collaborative Economy? - Collaborative Economy / Peer-to-Peer Economy - Collaborative Economy and regulatory asymmetries - Contractual architectures of the Collaborative Economy - Impacts of the Collaborative Economy and the Categories of Civil Law - The Uber case and the Airbnb Case.
Contracts and Platform Economy
'Platform-to-Business' (P2B) and EU Regulation 1150/2019: scope, asymmetries of bargaining power and transparency of contract terms and conditions - P2B and data protection - P2B and transparency of ranking criteria - P2B and competition - Dominance and consolidation strategies by Platforms: barriers to entry, 'pre-emptive' acquisitions - Platforms and Dark Data.
Contracts and the Digital Market: The Digital Market Act
The Digital Market Act: scope and objectives - Gatekeepers - Core Platforms Services - Obligations and prohibitions for Gatekeepers: in particular the prohibition of self-preferencing, the prohibition of tying - Gatekeepers and data protection - Gatekeepers and interoperability - Tech Giants and new competition law - The Directives 770 and 771/2019 on digital services - Towards the 'commercialization' of data?
Contracts and Data Protection
The GDPR: scope and purpose - ‘personal data’ and legal definition - the subjects - the concept of 'data processing' - Obligations and responsibilities - Data Protection 'by design' and Data Protection 'by default' - Codes of Conduct - Rights of data subjects - Data breaches - Cybersecurity - The problem of transferring personal data abroad - The Google Analytics case - The EU Commission's decision on the adequacy of the level of data protection in the EU/US relations of 10/7/2023 - Data Governance Act
Contracts and Knowledge Economy
Confidential Information, ‘trade Secrets’ and Know-how - The Role of the WTO and the TRIPs Agreement - Open innovation and Collaborative Research: The Sharing of Secrets and Confidential Information - the EU Directive 2016/943 ("Trade secrets") - Contracts and the Protection of Business Secrets and Information: Non-Disclosure Agreements (NDAs); Research and Development (R&D) Contracts. JV and Corporate JV Contracts
Contract and Information in the Digital Marketplace: Digital News, and Digital Adv Market
The Google / Australia case - The News Media Bargaining Code - The EU Directive No. 790/2019 on Copyright in the Digital Single Market (DSM Directive) - The Millennium Digital Copyright Act in the United States - Google and the Showcase project -Digital Adv and competition: Google, Meta, and the Jedi Blue case - Google and the market for online advertising services.
Contract and 'Circular Economy'
Agri-Food Circular economy - What is the "Circular Economy" and the role of the contract - Circular Economy and secondary raw materials market - Agri-Food Circular Economy - Circular Economy, Biogas and Bio Masses
Contractual Autonomy and Competition Law (part one): the Origins of Antitrust Law
Origins of Antitrust Law and limits to contractual freedom - the Standard Oil case and the role of the trust - The antitrust system in the US and Europe compared: the consumer welfare standard in the US - Antitrust law and consumer protection - The Roche Novartis case; the SUN Pharmaceuticals case
Contractual Autonomy and Competition Law (part two)
Concentrations: definition of concentration: mergers/acquisitions - effects of concentrations and competition – the role of the antitrust authorities in the field of concentrations: the TATA /Thyssen case; the AT&T case
Antitrust and Big Tech
The Google Android case; the Google Shopping case; the Google Meta case (Jedi Blue); the Apple /Epic case (Fortnite) - Digital Market Act and the new deal of antitrust law in the digital platform sector.
Contract, artificial intelligence, and robots
What is Artificial Intelligence and topicality of the subject - Machine Learning - Deep Learning - Robotics - Artificial Intelligence and law - ethical principles and responsibilities - the Proposal for a Regulation on Artificial Intelligence (Artificial Intelligence Act): scope and fundamental principles - Contract and blockchain: smart contracts.
SPECIAL PART
Principled negotiation
Negotiation (Part I)
KEY- PRINCIPLES of Negotiation
What is 'Negotiation' - Negotiation and contract formation - Negotiation and Mediation: differences - Negotiation and ADRs - Negotiation and prevention of litigation - 'Imperfect' Contracts - 'Inefficient' Contracts - The Harvard Program On Negotiation (PON) and the theory of Principled negotiation; negotiation on interests and negotiation on positions; the 4 fundamental principles of the principled negotiation theory; Negotiation on interests Vs Negotiation on position (positional bargaining)
Negotiation (Part II)
BATNA (Best Alternative to a Negotiated Agreement):
Definition and functions of BATNA in negotiation - Determination of the Value of BATNA: Reservation Value - Zero-BATNA Negotiation - 'Weak' BATNA and negotiation Strategies
Negotiation (Part III):
DISTRIBUTIVE NEGOTIATION Vs. INTEGRATIVE NEGOTIATION
distributive negotiation and integrative negotiation: key concepts; negotiation and value creation; position Vs interests; definition of 'interests' and their categories; the importance of interests in negotiation; target Point, Bargaining Zone and ZOPA (zone of possible agreement).
Negotiation (Part IV)
MULTI-PARTY NEGOTIATIONS
Complex negotiations with plurality of parties; the role of 'coalitions' and negotiation strategies - BATNA and negotiations with plurality of parties; 'extensive' negotiation; plurilateral negotiation; 'selective' negotiation; plurality of parties and the 'divide et impera' strategy - Google Vs. news publishers
Bibliography
GENERAL PART
- F. Moncalvo, SLIDES of the lectures;
- F. Moncalvo, Contract Law Selected Cases 2024 (which will be made available to students via the Elly platform at the beginning of the Course)
SPECIAL PART
- 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 may be replaced by the following one:
- Roger Fisher, William Ury, Bruce Patton, L’arte del negoziato, Corbaccio, Milano, latest edition available
Teaching methods
Lessons will be held in presence.
The lectures will include interactive moments with students, particularly at the beginning and at the end of the lecture, that will be dedicated to discussion and analysis of the topics and cases covered, with the active participation of attendees.
Student forums on topics will also be proposed to promote active participation by students.
Lecture attendance is highly recommended.
Participation in the negotiation simulations (role-plays) that will take place during the course is also recommended (it will be possible to register for the role-plays according to the instructions that will be given).
For each lecture, the following materials will be made available to students:
- lecture slides in dual language (Italian and English), weekly, after the lectures;
- recorded videos of lectures.
Assessment methods and criteria
Oral test.
Language: English/Italian
Even though lectures will be fully held in English, candidates, at their choice, may take the exam in English or in Italian.
The Exam will be through oral questioning.
EXAMS will be held in person.
The grade will be expressed in thirtieths (e.g., xx/30).
The EXAM covers:
General Part:
- SLIDES of the lectures
- 3 cases, chosen by the candidate, among the cases published in F. MONCALVO, Contract Law Selected Cases 2024 (which will be made available at the beginning of the course via the Elly platform)
Special Part on Negotiation:
- Roger Fisher, William Ury, Getting to Yes. Negotiating an agreement without giving in, Random House, latest edition available
- Slides of the lectures (concerning the theory of Negotiation)
Students wishing to take the exam in Italian, may replace the above book with the following text in Italian:
Roger Fisher, William Ury, Bruce Patton, L'arte del negoziato, Corbaccio, Milano, latest edition available
MIDTERM TEST (PARTIAL TEST)
Those students who have attended at least 85% of the lectures may take a mid-term test (covering the first half of course lectures 1-10, including the topics covered on negotiation theory during the first ten lectures).
The midterm test will be based on an oral test (3/4 questions).
Candidates will have the choice of taking the exam in English or Italian.
The date of the midterm test will be communicated.
Taking the partial test is an option and an opportunity given to attending students (not a duty) for attending students who meet the minimum attendance requirements indicated above.
Candidates who successfully take the midterm test will take the final exam on the remaining part of the syllabus, and namely:
- on the SLIDES from the remaining lectures of the course (lessons 11 to 20 inclusive, including the lessons relating to the part on negotiation included in the lessons indicated above);
- 3 (three) cases, chosen by the candidates, from those published in F. Moncalvo, Contract Law Selected Cases 2024
- Negotiation: topics covered in the second part of the course (lectures 11 to 20 inclusive)
The final grade will be the weighted average between the midterm test grade and the final exam grade.
In the event of a negative result in the midterm test the candidates will have to take the final exam on the entire program of the course.
Other information
Two preparatory lectures of 2 hours each will be held with the aim of focusing on topics covered in the lessons, highlighting the fundamental concepts dealt with in the lectures, with indications and suggestions on the method of study, and analysis of problems that may arise during the study.
The dates and times of the preparatory lectures will be communicated (via the Elly platform).
STUDENTS/PROFESSOR MEETINGS
Students and thesis students may book TEAMS meetings with the Professor by sending an e-mail to the following address: fabrizio.moncalvo@unipr.it.
