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 LEARNING OBJECTIVES:
1.- Knowledge and ability to understand the principles, notions and subject matters covered in class, as well as the different types of contracts analyzed and knowledge of the relevant applicable legal framework; ability to learn the theories and the pivotal principles of negotiation on interests; understanding and developing the concept of leadership (knowledge and ability to understand)
2. - Ability to analyze case law, and decisions and measures of independent Bodies and Authorities; ability to work in a team based on pre-defined roles and objectives; ability to prepare and deal with cases and negotiations; ability to use state-of-the-art negotiation techniques (applied knowledge and understanding);
3.- Capacity for critical analysis and autonomy of judgement (ability to make independent judgments)
4.- Ability to expound and discuss topics with technically correct and precise language; ability to expound and communicate accurately and correctly (communication and exposition skills)
5.- The ability to learn such as to allow autonomy of analysis in relation to concrete cases, and problem-solving, as well as the ability to manage the main critical issues in contract negotiations through the principles and notions to be learnt in the course; the ability to identify and present alternative solutions to overcome deadlock situations and problems; the identification of suitable contractual schemes and institutes that are functional to the interests pursued (learning skills)
Prerequisites
NONE
Course unit content
The course analyses and deepens the role of contracts in the digital and data economy, characterised by the huge impact of digital platforms, with their algorithms, and artificial intelligence, powerful vectors of growth and innovation, which offer enormous opportunities, but which - at the same time - pose significant risks for fundamental rights, new forms of technological/economic asymmetry, and of bargaining power asymmetries, as well as relevant challenges for regulators. In the first part of the course, the definition of ‘contract’ in the international context and its essential elements will be analysed, as well as the ways of contracts formation, and the distinction between contract, promise, and offer. The principle of contractual autonomy will also be analysed, in the dual perspective of the so-called "Freedom to contract" and the "Freedom of contract", and the actuality of the principle of the "Force of law" of the contract, as well as the limits imposed on contractual autonomy. In this perspective, some relevant cases of limits to contractual autonomy will be examined in depth: particular attention will be devoted, in this regard, to the figure of ‘compulsory licenses’, with specific regard to the pharmaceutical sector. During the course, the subject of the emergence of new forms of "economic/technological dependence", favoured by the disruptive role assumed by P2B - Platform-to-Business digital platforms, will be analysed. Emphasis will be placed on the case law method, through the analysis of recent cases (mainly from the case law of the EU Court of Justice and US case law). The question of whether data can be considered as an element of the contractual exchange will also be examined in depth, and whether it’s correct to speak of a process of gradual 'commercialisation' of data. The role of contracts in the Digital Single Market, as outlined through recent regulatory interventions, will then be examined. As an ideal counterpoint to the study of contract law, a large part of the course will be devoted to the study of the theory of negotiation, according to the approach of the so-called ‘principled negotiation’ (or negotiation on the merit or on interests), as elaborated by the scholars of the PON (Program on Negotiation) at Harvard Law school, as a rational and multidisciplinary process of communication and negotiation in the field of business, for the finalisation of efficient agreements, suitable to create value (and not for the purpose of mere redistribution). The topic of the completeness of contracts will also be analysed, and this also in function of disputes prevention, and as an alternative tool to litigation in business matters.
Full programme
GENERAL PART
Formation of contract
Contract, offer, promise. Formation of Contract - International Contracts - Digital Contracts - Methods of contracts formation. Negotiating asymmetries, abuse of dominant position, abuse of economic dependence.
Contractual autonomy and its limits
Contract and the Constitution - Contract and inequalities - Contract and 'weak' contractors: consumers - Contract and abuse of 'economic' dependence - Contract and competition - The 'imposed' contract, the 'mandatory' contract. The case of compulsory licences and the right of access to medicines. The role of the WTO in the matter.
The 'Force of law' principle, contractual remedies, and flexibility
Express termination clause, termination for convenience, Force Majeure, contingent conditions: precedent/subsequent conditions. Penalties Vs liquidated damages. Contract, Arbitration and Mediation.
Direct distribution, indirect distribution, integrated vertical distribution, "selective" distribution: contractual paradigms and protection of competition
Physical and digital networks
Franchising agreements: definition - contractual networks and protection of the Franchisee - Disclosure obligations - Duration – mono-brand franchise - Corner franchising - Master franchising and internationalisation - Exclusivity and non-competition. Licensing: definition - Licensing Vs Franchising - the Starbucks case, the Luxottica case, the Nokia case - scope of the licence -merchandising - royalties - guaranteed minimum turnover clauses - exclusive/non-exclusive licences – licensing and the principle of 'exhaustion': the ebay case; the Dior case.
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 sales and services - Parity clauses and other MFNs - Hardcore restrictions - non-competition clauses - exclusive distribution - selective distribution. - The problem of online sales restrictions: the Pierre Fabre Case - The problem of dual pricing: towards differentiation of sales channels? Online distribution and third-party platforms. The Pierre Fabre case. The Coty case.
Contract and the Digital Single Market: consumer protection and limits to contractual autonomy
The EU strategy and the Digital Single Market: definition and objectives - The EU Regulation 2022/1925 (Digital Markets Act) - The EU Regulation 2022/2065 (Digital Services Act) - EU Directive 2019/771 on contracts for the sale of goods, consumer protection and the role of private autonomy.
Contract law and data protection
The EU Data Protection Regulation No. 679/2016 (GDPR): definition of personal data and system of protection; the problem of "profiling", cookies as profiling tools. Towards the 'commercialisation of data? - The so-called biometrics: the Clearview case - Dark Data and Data Governance: the EU Regulation 2022/868 (Data Governance Act).
Contract and the Economics of Tourism: Online Travel Agencies (OTAs) and their Contractual Structures - The so called ‘parity clauses’
The role of OTAs in the tourism economy: changing models and paradigms for the entry of 'technological' operators in the tourism and online booking sector - The contractual structures of OTAs - OTAs and MFN clauses ('parity' clauses’) - OTAs and competition law: the booking.com case, the expedia.com cases. Market opening and new scenarios in the tourism booking services market.
Contracts and Collaborative Economy
Definition of ‘Collaborative Economy’ - Collaborative Economy and peer-to-peer economy - Collaborative Economy and regulatory asymmetries - Contractual architectures of the Collaborative Economy - Impacts of the Collaborative Economy on traditional institutes of civil law - The Uber Case, the Airbnb Case: the principle of determining influence on the contract.
Knowledge Economy Contracts
Confidential Information, Trade Secrets and Know-how as valuable assets - 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; Research and Development (R&D) Contracts. JV and Corporate JV Contracts.
Contract and the right to information in the Digital Market: Digital News, Digital Adv
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 AV and competition: Google, Meta and the Jedi Blue case - Google and the market for online advertising services.
Contractual Autonomy and Antitrust Law (part one): Origins of Antitrust Law: the US and European systems compared
Origins of antitrust law and the limits to contractual freedom - the Standard Oil case and the role of the trust in an anti-competitive function - The antitrust system in the US and Europe compared: the 'consumer welfare standard' in the US System - 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 on the market and competition - role of antitrust authorities in the field of concentrations: the TATA /Thyssen case; the AT&T case - The ITA / Lufthansa case.
Antitrust and Big Tech: abuse of dominant positions and tying practices
The Microsoft / SUN case and the Google Android case; the Google Shopping case; the Apple /Epic (Fortnite) case - The Digital Market Act and the new deal of antitrust law in the digital platform sector.
Contracts, artificial intelligence, and robots
What is Artificial Intelligence and topicality of the topic - Machine Learning - Deep Learning - Robotics - Artificial Intelligence and law - ethical principles and responsibilities - the Proposed Artificial Intelligence Regulation (Artificial Intelligence Act): scope and basic principles - Contract and blockchain: smart contracts.
SPECIAL PART
The Principled Negotiation
Negotiation (Part 1): FUNDAMENTAL PRINCIPLES IN NEGOTIATION
What is 'negotiation' - Negotiation and contract formation - Negotiation and Mediation: differences - Negotiation and ADR - Negotiation and prevention of litigation - 'imperfect' contracts - 'inefficient' contracts - The Harvard Program On Negotiation and the theory of principled negotiation; negotiation on interests and position negotiation; the 4 basic principles of the theory of principled negotiation; information asymmetries and negotiation techniques - the stages of negotiation.
Negotiation (Part 2): BATNA AND RESERVATION VALUE
Definition and functions of BATNA - Determination of BATNA value: Reservation Value - Zero-BATNA negotiation - 'weak' Batna and negotiation strategies.
Negotiation (Part 3): 'DISTRUBUTIVE' NEGOTIATION VS. INTEGRATIVE' NEGOTIATION
Distributive negotiation and Integrative negotiation; negotiation and value creation; position Vs interests; definition of 'interest' and its categories; the importance of interests in negotiation; target Point, Bargaining Zone and ZOPA (zone of possible agreement) - criteria for determination.
Negotiation (Part 4): COMPLEX NEGOTIATIONS WITH MULTIPLE PARTIES
Complex negotiations with multiple parties; the role of 'coalitions' - BATNA and negotiations with multiple parties; 'extensive' negotiation; plurilateral negotiation; 'selective' negotiation; multiple parties and the 'divide and conquer' strategy - the Google/Publishers Case. The case of Cop21 in Paris in 2015.
Negotiation (Part 5): BIASES AND MISCALCULATION OF THE VALUE OF BATNA IN NEGOTIATION
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, the
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.
Lecture attendance is highly recommended.
Participation in the negotiation simulations (roleplays) 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.
TEACHING METHODS
Together with frontal lectures, it will also be used the heuristic-Socratic method, to encourage active role of the students and dialogical method in the search for solutions to cases and problems addressed.
Case studies will have a significant role for in-depth analysis of topics covered.
EXERCISES
The following exercises will be conducted during the course:
- Negotiation Roleplay (simulated negotiations based on cases prepared by leading international universities)
- Moot Court
The exercises will be conducted in English.
NEGOTIATION ROLEPLAY
During the course, two negotiation roleplays (Roleplay) will be carried out in Teams based on cases created by leading international universities, with increasing degrees of complexity. The Roleplays will take place through the following phases:
PREPARATION: initial preparation in class with the teacher and subsequent study and preparation of the strategy by each team, under the guidance of the Team leader (2-4 h depending on the degree of complexity of the case, of which approximately 1 H in class with the teacher);
NEGOTIATION: negotiation session between the Teams representing the parties involved (negotiation may take place online or in-person depending on the teacher's instructions. The Final Roleplay will take place in presence): 2-3 hours depending on the complexity of the case.
DEBRIEFING: by the Professor, at the end of the negotiation, with an analysis of the underlying theoretical and practical aspects and of the solutions implemented during the negotiation, and with the lecturer's feedback to the participants and expected improvements to be achieved.
MOOT COURT
Provides for the preparation and conduct of an actual trial, on a case of close relevance, which will debated by the legal teams of the parties involved before a Court of three Judges (always represented by students), and which will consist of hearings in which the legal teams of the parties will have the opportunity to discuss the issues underlying the case, with a final discussion, at the outcome of which the Court will rule on the Case.
Assessment methods and criteria
EXAM
Oral exam
Verification of the achievement of the learning objectives, namely: 1 (knowledge and understanding); 2 (knowledge and applied understanding); 3 (ability to make independent judgements); 4 (communication and presentation skills); 5 (learning skills), will take the form of an oral test, based on a minimum of three questions relating to the course syllabus, aimed at assessing whether the student has achieved the learning objectives concerning the subjects, topics and institutes covered by the course. Failure to achieve these objectives will result in an insufficient result in the exam.
Verification of student learning (EXAM) takes place through oral questioning.
Language of exam: English
Even though lectures will be fully held in English, candidates may take the exam, at their choice, in English or in Italian.
The exam will be in person.
The grade will be 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, 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
Students and thesis students may book TEAMS meetings with the Professor by sending an e-mail to the following address: fabrizio.moncalvo@unipr.it.
Professor/Students meetings will be at the end of each lecture.
For information or clarifications on the course, the modalities of the exam, and 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.
2030 agenda goals for sustainable development
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