Networks of Collaborative Contracts for Innovation

Contract Law

Networks of Collaborative Contracts for Innovation

By Pablo Marcello Baquero
Hart Publishing September 2020

Specifications

ISBN-13
9781509929962
Publisher
Hart Publishing
Publication
September 2020
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

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Paperback

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With the rise of automation and artificial intelligence, the companies that will succeed in the future are those who operate under a constant state of innovation. Not just that, they will need to ensure that they pursue 'open innovation'.

This book explores the contractual basis for innovation, examining the legal challenges raised by contracts to innovate. On the one hand, it examines empirical studies analysing how these agreements are structured in order to overcome the inherent uncertainty of innovative activity. On the other hand it develops the legal doctrine governing contracts to innovate, in particular the notion of duty of loyalty to the contractual network, providing suggestions on how to concretise it in different situations.

Table of Contents

Introduction
I. Inter-firm Collaborative Innovation: The Practices, Contractual Models and Legal Challenges
A. Inter-firm Collaboration in the Global Productive Vanguards: Challenges for Legal Studies
B. Models of Inter-firm Cooperation: Modular, Relational and Co-creation
C. Rethinking Contracting Practices and Private Law for Collaborative Co-creation
D. Experimentalism in Contractual Practices
II. The Rise of Collaborative Contractual Networks for the Production of Innovation: Challenges and Opportunities
A. The Social Problem: De-verticalisation of Productive Activities in the New Economy
B. Economic Importance: Overcoming the Stagnation of Productivity Growth and Bridging the Gap between
Developed and Developing Economies
III. What Role for the Law in Collaborative Contractual Networks?
A. The Context: The Challenges for Contractual Networks in an Economic and Sociological Perspective
B. What Role for the Law?
IV. The Plan of the Book
1. Contractual Networks to Innovate: The Search for a Legal Concept
I. The Business Reality: Contractual Networks Versus the Traditional Legal Concepts
A. The Phenomena of Contractual Networks: Neither Contract nor Corporation
B. Between or 'Beyond' Contract and Corporation: Other Possible Legal Classifications
II. Building a Concept of Contractual Networks Adapted to the Distinctive Character of Productive Networks
A. Main Features of Productive Networks: Designing a Concept of Contractual Networks
B. Legal Constructs Proposed to Govern Contractual Networks: Considering the Reality of Productive Networks
III. Conclusion: The Working Concept of Contractual Networks for Innovation
2. The Internal Coordination of the Collaborative Contractual Network through Governance of Contract
I. Re-Interpreting Contractual Networks' Internal Challenges for Innovation Practices
II. Governance Mechanisms in Contractual Networks for Innovation
A. Limitations of Traditional Contract Design
B. The Governance of Inter-fi rm Innovation
III. Evidence from Collaborative Contractual Networks for Innovation in Brazil
A. Background to the Empirical Field and Methodology
B. First Stage of Interviews
C. Second Stage of Interviews
IV. Inter-firm Innovation in England
A. Evidence from Legal Studies
B. Collaborative Arrangements in Construction in the UK: Standard Agreements and Megaprojects
V. Conclusion
3. Managing the Internal Coordination of the Network: The Role of the Legal Doctrine and the Duty of Loyalty to the Network
I. The Legal Doctrine Regarding Contractual Networks: A Comparative Perspective
A. US Braiding Theory – 'Low-powered Enforcement' and Critique
B. European Private Law
C. Brazilian Law
D. The Possibility of Low-Powered Enforcement under English and Brazilian Law
E. The Legal Concept of Relational Contract in English Law
II. Duties of the Members of the Network: The Proposal of a Duty of Loyalty or Sincere Cooperation towards the Network
A. The Proposal and the Justification of a Duty of Loyalty or Sincere Cooperation towards the Network
B. Other Distinct Concepts in Comparative Private Law
C. A Duty of Loyalty to the Common Objective of the Collaborative Project
III. Conclusion: Finding a Duty of Loyalty to the Network/Collaborative Project under English and Brazilian Law
4. Legal Interpretation in Contracts to Innovate: Potential Matters of Dispute
I. Duty to Share Information
A. Prelude: Constant Exchange of Information and Heightened Duties of Cooperation in Collaborative
Networks
B. Case Law
C. English Law
D. Duty to Provide Information under Brazilian Law
E. Identifying Criteria to Assess the Potential Intensification of Duties to Disclose Information under English and
Brazilian Law
F. Braiding Responses to Allocation of Information through Governance Mechanisms
II. Duty of Non-Discrimination in the Collaborative Contractual Network
A. Prelude: Similar Opportunities for Competing Companies in Quasi-organisational Collaborative Ventures?
B. Integrated Distribution Networks with Collaborative Duties and Sharing of Risks and Profits
C. English Law
D. Brazilian Law
E. Criteria to Identify an Unjustifiable Discrimination in the Network
F. Governance to Prevent Abusive Discrimination
III. Sharing of Profits
A. Introduction
B. Case Law
C. English Law
D. Brazilian Law
E. The Sharing of Profits: What Role for the Courts
F. Governance Mechanisms: Profit-sharing Agreements, Relational Incentives, Target Costing and Open-Book
Management
IV. Termination: Potential Design and 'Fundamental Breach'
A. Prelude: Distinctiveness of Termination in Collaborative Contractual Networks
B. Contractual Termination and Material Breach in Experimental Innovative Relationships
C. English Law
D. Brazilian Law
E. Criteria of Interpretation and Governance
V. Conclusions
5. Conclusion
I. The Reverberations of Varieties of Capitalism on Inter-firm Innovation
II. The Relevance of a Comparative Perspective
III. The Role of Legal Studies: Institutional Imagination of Potential Forms of Contractual Collaboration
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