Networks of Collaborative Contracts for Innovation

Pablo Marcello Baquero is a Postdoctoral Research Fellow at HEC Paris.

• 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 betweenDeveloped 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 Innovation2. 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 MethodologyB. 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 LawC. 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 CollaborativeNetworks 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 andBrazilian 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-BookManagement 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. Conclusions5. 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