research papers about contract law

Contract Law

Contract-wrapped property.

• Danielle D’Onfro

Uber Technologies Inc. v. Heller

Supreme Court of Canada Targets Standard Form Contracts.

Williams v. Medley Opportunity Fund II, LP

Third Circuit Rules that Tribal Payday Lenders Cannot Compel Arbitration.

Doe v. University of the Sciences

Third Circuit Holds Pennsylvania Law Guarantees a “Real, Live, and Adversarial Hearing.

Zuckerman v. Metropolitan Museum of Art

Second Circuit Holds that the Holocaust Expropriated Art Recovery Act of 2016 Does Not Preclude Application of Laches Defenses to Nazi-Looted Art Recovery Claims.

Revealing Secrecy Tools

• Mark Fenster

Pseudo-Contract and Shared Meaning Analysis

• Margaret Jane Radin
• Robin Bradley Kar

Heimer v. Companion Life Insurance Co.

Sixth Circuit Invokes Contra Proferentem as Default Rule for Resolving Ambiguous Contract Provisions.

DirecTV, Inc. v. Imburgia

North carolina ass’n of educators, inc. v. state.

Repeal of Tenure Violates Tenured Teachers' Constitutionally Protected Contractual Rights.

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• 28 Apr 2022
• Research & Ideas

Can You Buy Creativity in the Gig Economy?

It's possible, but creators need more of a stake. A study by Feng Zhu of 10,000 novels in the Chinese e-book market reveals how tying pay to performance can lead to new ideas.

• 26 Jun 2020
• Working Paper Summaries

Weak Credit Covenants

Prior to the 2020 pandemic, the leveraged loan market experienced an unprecedented boom, which came hand in hand with significant changes in contracting terms. This study presents large-sample evidence of what constitutes contractual weakness from the creditors’ perspective.

• 13 May 2019

The Unexpected Way Whistleblowers Reduce Government Fraud

Even unfounded allegations by whistleblowers can force government contractors to renegotiate their terms, say Jonas Heese and Gerardo Perez Cavazos. Open for comment; 0 Comments.

• 23 Jan 2018

Transaction Costs and the Duration of Contracts

When buyers transact with sellers, they select not only whom to transact with but also for how long. This paper develops a model of optimal contract duration arising from underlying supply costs and transaction costs. The model allows for the quantification of transaction costs, which are often unobserved, and the impact of these costs on welfare.

• 20 Oct 2015

Internalizing Global Value Chains: A Firm-Level Analysis

Manufacturing activities that used to be performed in close proximity are increasingly fragmented across firms and countries. This paper provides strong evidence that considerations driven by contractual frictions critically shape firms' ownership decisions along their value chains.

• 27 Feb 2006

When Rights of First Refusal Are a Bad Deal

Contracts that include a right of first refusal usually benefit the holder of that right. But not always. New research by professor Alvin E. Roth and colleague Brit Grosskopf explains when it's wise to say no. Closed for comment; 0 Comments.

• 03 Mar 2003

Top Ten Legal Mistakes Made by Entrepreneurs

The life of a startup can be precarious, a wrong turn disastrous. Harvard Business School professor Constance Bagley discusses the most frequent legal flops made by entrepreneurs, everything from hiring the wrong lawyer to puffing up the business plan. Closed for comment; 0 Comments.

Contract Law in Common Law Countries: A Study in Divergence

• Published: 14 July 2022
• Volume 43 , pages 133–147, ( 2022 )

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• Manasi Kumar 1 &
• Maren Heidemann 2  

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This special issue is the result of the 2021 co-operation between the London Centre for Commercial and Financial Law (LCF) and Jindal Global Law School (JGLS) in India. It has been a huge pleasure to work together on this three-part conference series in 2021 and to co-edit this special issue with the Liverpool Law Review. Both of us had been fascinated with the evolution of the common law of contract across jurisdictions for some years, which is perhaps natural as we are situated within common law jurisdictions. The journey that the original English common law took from its highly integrated life in an English jurisdiction held together by the Privy Council into a more and more loosely connected network of Commonwealth countries and their independent court systems and legislatures, resulted in a variety of emanations of contract law issues. Some countries have codified their contract law. Some countries practice an active reference to the traditional body of English case law. Other countries have civil law influence as well and operate a layered or mixed system of laws where concepts of both traditions come into play. Thus, our idea was to have an exploration into the diversity of approaches to contract law within common law jurisdictions.

Our conference series provided an opportunity for all those with an interest in contract law issues to delve into a comparative analysis. We invited participants to pick a topic along three broad themes—the formation of the contract, its substance and terms, and termination and remedies. Each participant contrasted the approach of two or more common law jurisdictions, with the UK necessarily being one of the chosen jurisdictions. What had initially been envisioned as a physical conference was pushed online due to the pandemic and spread out thematically across three separate virtual conferences. Although a decision taken amidst a great tragedy unfolding across the globe, this changed format turned out to be somewhat fortuitous as we were able to bring together many more people than we had initially believed possible, with the participation of eminent scholars and a large network of academics across countries on four continents. Some of our participants joined at ‘ungodly’ hours of the day or night and rescheduled classes in order to join our live online conferences. For this and the splendid work of our presenters, commentators and keynote speakers we are tremendously grateful!

Mindy Chen-Wishart started off the conference series by giving a keynote address to the first conference (on the formation of the agreement) in June 2021. Stefan Vogenauer held the keynote speech at the second conference (on the substance of the agreement) in September 2021, and Roger Brownsword was the keynote speaker at the concluding conference (on disputes arising out of the agreement) in December 2021. All the keynote addresses, along with other materials and clips, can be viewed for free on the dedicated LCF website. Footnote 1 At each conference, we had the pleasure of inviting eminent academics and scholars to serve as discussants to the papers presented—Nigam Nuggehalli, Hector MacQueen, May Fong Cheong, Nilima Bhadbhade, Stefan Vogenauer, David Cabrelli, Martin Hogg, Jan Halberda, Stelios Tofaris, Alexander Loke, Geraint Howells, Franco Ferrari and Sonal Kumar Singh. Their comments were insightful and of great value not only to the authors, but to all participants. Once again, we are indebted to all our keynote speakers and discussants for providing for lively debates at these events and for adding to the quality of the resulting papers as they are published here. We also thank co-founder and director at the LCF, Mads Andenas QC, who expertly opened and chaired many of our sessions and has been an invaluable supporter of this project.

We now turn to summarizing the key points made by the authors, and discussants, through the conference. Before we do so, though, we found it useful to organize this editorial not upon the conference themes, but instead based upon the kind of legal challenge that the papers were discussing. The inspiration for such approach came from Roger Brownsword, who, in his very thoughtful keynote address for the final conference, identified two competing mindsets in the English common law towards contract law, which led us to adopt a broader lens through which to view our project. The first mindset Brownsword identified, which he referred to as a ‘coherentist’ approach, is concerned with maintaining the integrity of doctrine in a historically consistent manner. The other, Brownsword referred to as the ‘regulatory’ approach. This mindset is more concerned with the functionality of the law and whether it is fit for the purpose for which it is devised. This was a very intriguing duality set up by Brownsword, especially as he noted that neither option appears particularly inviting.

The coherentist would be correct in stating that no legal tradition is capable of sustaining itself without a healthy regard for its inheritance and accepting some theoretical and doctrinal limits, even as it innovates to meet new challenges. The regulatory approach is also quite reasonable, as it regards the law not as a vaunted end in-of-itself, but as a means to accomplish certain societal goals. If the law is unable to provide answers to a new generation of questions and challenges, its continuation in the existing form is likely unjustified. Yet, both modes of thinking have substantial drawbacks in the midst of a dynamic and fluid commercial environment. The coherentist approach is perhaps a bit too wedded to the idea of coherence, which may result in the law becoming insensitive to changing realities or even being an entirely fictitious exercise, running the risk of a ‘doctrinal disintegration’ (Gilmore 1995 , p. 110). A similar outcome is likely to occur with a zealous regulatory approach that may have little regard for doctrine, fragmenting the law into myriad strands with no way to convincingly interact with each other.

Perhaps, however, instead of seeing these as two opposing perspectives, battling for dominance, it may be useful to see them instead as in conversation with each other. Doctrine is created to lend some sense to the law, in order to chart its progress and guide it through choppy waters. However, where the doctrine is straining to account for and accommodate commercial realities, its utility must be questioned—purity of doctrine must not be permitted to strain common sense. As Lord Wilberforce remarked within the context of contract formation: ‘…English law, having committed itself to a rather technical and schematic doctrine of contract, in application takes a practical approach, often at the cost of forcing the facts to fit uneasily into the marked slots of offer, acceptance and consideration.’ Footnote 2 It is here that the legal academic has a valuable role to play. When doctrine is fraying at the edges in courts, a doctrinal restatement can help evolve a more just and sustainable jurisprudence. Occasionally, the academic is able to delve deeper into underlying legal principles, identifying similarities between seemingly disparate areas of doctrine and thereby recasting the law within a new framework. Such exercises benefit the jurisprudence by providing courts with a thoughtful means to revisit their commitment to ‘technical and schematic doctrine’.

With this in mind, for the purposes of this editorial, we have organized the papers and conference proceedings in relation to the specific challenges they address. We asked ourselves, what doctrines are these papers challenging as being ill-suited to the modern world, and what are the proposed frameworks being suggested to revitalize doctrine in the face of these challenges? We found that, across common law jurisdictions, courts are struggling to fashion appropriate responses to the changes in the manner in which parties contract today, with the advent of the internet and the increasing contracting by minors in the digital space. There has also been a more open recognition of different contractual relationships, invoking the need for different doctrine; most notably within the context of the debates around ‘relational’ contracts and good faith in the UK. There also remain a few longer-standing critiques of doctrine resulting in some interesting divergences, such as the penalty rule, the treatment of unfair terms, the nature of pre-contractual representations and warranties, and frustration. We will take each of these in turn.

The Changing Manner of Contracting—Minors and the Digital Age

Concern about how parties contract is not new to the common law. In the twentieth century, it led to the rise of consumer protection laws, the advent of the unconscionability doctrine in the US, and the Unfair Contract Terms Act, 1977 (UCTA) in the UK. Brownsword described the UCTA as the result of a ‘crisis’ in common law, where most judges were unwilling to develop the common law of contracts to protect consumers in the face of adhesion contracts and, so, the legislature had to step in. In their paper, Dharmita Prasad and Pallavi Mishra demonstrate that, if anything, the ‘adhesiveness’ of the consumer e-contract is even more pronounced today, with the common law duty to read being made a mockery of with every click of an ‘I Agree’ button. Their paper lays out the travails of three jurisdictions in the face of this new millennial reality. US courts are putting their doctrine of unconscionability into the service of regulating onerous terms, while the UK courts seem relatively more hesitant to do so outside of the context of the UCTA. In India, the Indian Contract Act, 1872 being the product of the nineteenth century classical common law of contract, is largely silent on the issue of unfair terms. While the legislature has recently passed consumer protection legislation regulating ‘unfair contracts’ in consumer contracts, the Indian Supreme Court is trying to develop a broader contract doctrine of unconscionability, modelled upon the US jurisprudence. Although the Indian unconscionability jurisprudence is somewhat hesitant and inartful, Prasad and Mishra opine that a broader unconscionability doctrine may provide a necessary framework within which the Indian courts may develop a more meaningful jurisprudence regarding what constitutes unfairness within the digital sphere. Their approach was analysed by Stelios Tofaris who provided the wider context of legislative history of the Indian Contract Act where the struggle to achieve substantive fairness already played out in the nineteenth century debates. Tofaris pointed out that, while both the UK and Indian legislature have now opted for statutory solutions outside the traditional contract doctrines in modern times, the US concept of unconscionability as practiced there should not be advocated overly uncritically without giving due consideration of its limitations and failings.

The difficulties of e-contracting are exacerbated when paired with a kind of contractual relationship where one of the parties is objectively vulnerable. Minors are a classic example of a category of people that are deemed vulnerable by society, and the English common law has proceeded from that paternalism. As Shivangi Gangwar highlights in her paper, perhaps one of the most ignored modern sociological trends is the rapid, technology-fuelled expansion in the frequency and nature of minors’ contracting. Drawing lessons from South Africa, Gangwar argues for a broader flexibility, adopting a graded approach with limited contractual capacity permitted. Shaun Star and Divyangana Dhankar’s paper, meanwhile, demonstrates that, in comparison with the legal frameworks in Australia and the UK, the Indian law governing minors’ contracts is unduly harsh and outmoded, with Indian courts seemingly compelled to declare as void almost all contracts that minors enter. The Indian courts’ paralysis in the face of the relevant statutory provision has been met with some other legislative reliefs being provided. However, similar to Prasad and Mishra, Star and Dhankar are also not convinced that legislative action provides any panacea. Instead, they persuasively argue that piece-meal legislative enactments in India have actually created a larger incoherence within the area of the sports and entertainment industries, with entire swathes of contracts unregulated (e.g. with the rise of e-sports). Despite the increase in minors’ activities in the sports and entertainment industries, such minors will remain highly vulnerable in India, with only a limited right to redress found in constitutional protections, unless the Indian judiciary is willing to engage in a careful and principled re-evaluation of the general law of minors’ capacity to contract.

These papers demonstrate an interesting tension in the jurisdictions being scrutinized—especially in India. While legislative enactments are useful in providing redress, they tend to be targeted to specific problems. This may be useful as some classes like consumers, may be deserving of heightened protection. However, common law courts can benefit from a broader, and more flexible, general contract doctrine as they implement such legislative protections. In the worst case, the courts may end up implementing legislation that is scattershot in an unthinking manner, becoming party to a legal environment that does more harm to those it is meant to protect.

These papers, especially Gangwar’s, also throw up a question about whether the model of the beneficial/necessaries contract is even a satisfactory model in the face of e-contracting. The difficult questions of the best interest of the minor are often connected with acquisitions, such as in inheritance or marital cases, and services. Could such a framework also apply to a 16-year-old social influencer’s services and profit-sharing agreement with YouTube? Can that contract be adequately described as ‘beneficial’ for the minor or one for ‘necessaries’? Additionally, in common law countries, these matters generally seem to arise once there is a contractual dispute, and one or both parties have already invested time and resources into the contractual relationship. One wonders if a different framework, such as in Germany where such questions can be laid before the family courts in a non-contentious and ex ante setting, may be useful. In her comments to Star and Dhankar’s paper, May Feong Chong, mentioning the well-publicised US case of Brook Shields, reminded us of the potential long lasting impact of parental prerogative in relation to minors which is the default position in the above-mentioned German (civil) law, too. We cannot help but conclude that minors’ contracting capacity is a topic deserving of urgent and careful study to account for the recent shifts in behaviours.

Good Faith and Its Place Within Common Law

Contemporary debates in the UK about whether English common law recognizes a duty of good faith and what such good faith involves, invited quite a bit of attention by our participants. In her paper, Paula Giliker examines the developments in the duty of good faith in England and Wales, and Canada. She argues that the underlying principles accepted by the English and Canadian courts to promote good faith in performance could be extended to the negotiation phase, especially in Canada where the Supreme Court has been much more enthusiastic in its embrace of good faith as an obligation in the performance of contracts. However, Giliker demonstrates that any duty to negotiate in good faith not only cuts against the grain of the arm’s length bargaining posture, but will, more significantly, be difficult to measure and remedy. How much effort demonstrates good faith? And what is the measure of damages if such a duty has been breached? She suggests that perhaps the farthest the common law will go with regard to pre-contractual dealings is to prohibit the wilful stringing-along of another person and provide reliance damages. However, this too is not without its complexities in determining whether the intention of the person was to wilfully string the other along.

A further difficulty Giliker points to is that negotiations can either occur prior to a contract or be part of the contractual bargain in relation to some future moments in the contractual relationship. In the latter scenario, there may be some means for the courts to evaluate a party’s actions in relation to the transaction and their past dealings. This may particularly be so in the case of a ‘relational contract’, although such a term requires careful consideration of what are the defining features of such an agreement. However, it is more difficult to ascertain at what point a person’s self-interested negotiation tactics and strategies would be such as to deserve the sanction of courts in pre-contractual negotiations. Indeed, in more complicated contracting environments, there is frequently extensive pre-contractual documentation, which may even have been agreed to be ‘subject to contract’. There is an interplay between two questions here—at what point is the contract actually formed? And how much good faith may legitimately be demanded of a party seeking to protect and advance its interests?

In their paper on good faith within the construction industry, Saintier et al. propose using a ‘project-centric’ approach to lend more meaningful definition to the good faith doctrine. By taking the construction industry in the UK and Australia as case studies, they demonstrate that the common law’s failure to address the unique transactional arrangement at play has resulted in the construction industry having to self-regulate by way of suites of contracts. Of course, such an approach has its limitations, as ultimately parties rely upon the courts to resolve disagreements by deciding what the parties truly intended. Within the context of good faith clauses, UK and Australian courts are sympathetic to the cooperative nature of the endeavour but remain a bit wary of how to appropriately account for it within the ambit of the law. The authors argue that by adding the project into the list of considerations of what would constitute good faith, a certain objectivity would be achieved, which would help courts develop a more meaningful jurisprudence regarding what good faith means within the construction context. While Martin Hogg welcomed the use of express contractual terms in industry standard forms setting out good faith related duties in detail and agreed that the courts must do more to meaningfully implement duties of good faith, he wondered whether the project could have a separate existence, apart from the parties’ intention, or whether such an approach would subsume parties’ intent entirely.

What is most intriguing to us about Saintier et al.’s proposal is that they are persuaded that the doctrine of good faith has to be sensitive to the context of the specific contractual relationships at issue. They are not alone in this insight. Indeed, in a compelling keynote address for the first conference, Mindy Chen-Wishart had presented her and co-author, Victoria Dixon’s, argument that good faith is not alien to the English common law. According to them, there are three possible approaches which English courts could take regarding good faith moving forward, and four scenarios in which good faith has already found resonance in English decisions, although not explicitly recognized. They call this their ‘3 × 4 approach’. While they prefer the recognition of good faith in its ‘humble’ form as a credible and persuasive organizing principle, which explains various strands of English decisions, what is perhaps most intriguing is the underlying taxonomy of contractual relationships that the authors lay out—the ‘4’ in their ‘3 × 4 approach’. The authors identify four contractual relationships: (1) arm’s length; (2) symbiotic; (3) recognized vulnerability of one party; and (4) fiduciary relationships, with (1) and (4) on two ends of a continuum. (Chen-Wishart and Dixon 2020 , p. 212). They demonstrate that English decisions apply gradually escalating obligations of honesty, fair dealing, and respect for the contractual purpose, such that by the time a fiduciary relationship is in front of the courts, the parties are held to very high standards of care and regard for the other. The keynote was a good reminder that as the explorations of good faith doctrine continue, such inquiries can only be successfully conducted when situated within the appropriate context of real-life interactions. In other words, it is just as important to identify the relevant characteristics of the contractual relationships, as it is to identify the doctrinal features.

Returning to Saintier et al.’s ‘project-centric’ approach, then, we believe that their article also throws up questions not just for the ‘relational’ contract, but also the network—an area of scholarship pioneered by Gunther Teubner. A network may be broadly defined as ‘a combination of relational contracts close to the hybrid end of the spectrum [between market and organization] together with co-operative elements found in multilateral associations linked through bilateral contracts’ (Collins 2011 , p. 10). Such an arrangement throws up a contradictory mess of assessments where individual actors are engaged in self-interested commercial behaviour, but their self-interest is intricately tied to the success of the cooperation of the entire network. In order to bring any manner of harmony to this, it may be argued that the network is to be regarded as an entity outside any single bilateral contract, which is owed a separate duty of loyalty or good faith (Collins 2011 , pp. 14–15). We would add that this really nips at the heels of the judicial system for a more robust jurisprudential shift regarding networks, which throws up many questions for careful consideration. For example, Saintier et al. only raise the spectre of the ‘project’ for analysis of the meaning of good faith within the construction context. However, could one argue that the other parties to the construction project should be allowed to sue each other in spite of a lack of privity (Collins 2011 , pp. 15–16)? Although the privity rule has been much criticised, could the common law countenance such an abandonment? We would suggest that if cast as an exception to the rule within the context of a specific contractual relationship, i.e. the network, common law courts may be more willing to consider such arguments. But just as with the current debates surround the ‘relational contract’, the ‘network’ will first require a broader legal engagement and scholarship on its defining features.

The Penalty Rule

Although the common law appears to be in need of a serious engagement with the underlying taxonomy of contractual interactions and relationships, not all rests on such an inquiry. There remain several meaningful criticisms of prevailing doctrine even within the context of a simple, one-shot, arm’s length transaction. In such a context, the common law presumption is that parties should have the autonomy to arrange their own commercial affairs. However, this presumption has been undercut by the common law at times. One of the more contentious areas of this subordination of parties’ intention to other considerations can be found in the somewhat dissatisfying development of the jurisprudence around penalties. In 2015, the UK Supreme Court contended with this difficult history in the Cavendish-ParkingEye Footnote 3 judgment and expanded the application to protect the parties’ ‘legitimate interest’. In his fiery critique of the penalty rule, Larry DiMatteo demonstrates that there is an incoherence in the penalty rule when one surveys common law countries, indicating perhaps that the rule itself is one that belies reason. He notes that the cases also demonstrate a ‘commercial-consumer dichotomy’, with some common law jurisdictions adopting the ‘legitimate interest’ test only for commercial arrangements which do not involve consumers because, arguably, consumers’ reasonable expectations should not be subordinated to business interests as they fall into a different category of cases (a recognized vulnerability of a party as Chen-Wishart and Dixon would suggest). He urges the alternative framework of unconscionability, i.e. all liquidated damages should be enforceable unless they are found unconscionable. This framework would permit courts to evaluate factors such as relative bargaining strength to determine whether a clause constitutes an unenforceable penalty. However, just as Tofaris did with Prasad and Mishra’s paper, Geraint Howells questioned the workability of the unconscionability doctrine as a standard of the test for enforceability of a liquidated damages clause—a concern shared by Alexander Loke.

Joshua Teng and Kailash Kalaiarasu similarly engage with the penalty rule and the impact that the Cavendish-ParkingEye judgment has had in Singapore and Malaysia. They demonstrate that Singapore has resoundingly rejected the ‘legitimate interest’ test on the grounds that it departs from the compensatory principle, which takes as a starting point that there has been some damage to the non-breaching party for which it needs to be compensated. On the other hand, Malaysia is embracing the test. Teng and Kalaiarasu suggest that this may provide a way to avoid the judicial interpretation of the ‘reasonable compensation’ test contained in the Malaysian Contracts Act, 1950, which, much like its progenitor in India, has been struggling under the weight of judicial decisions that require proof of damages to assess whether the stipulated sum in the clause constitutes ‘reasonable compensation’. They further argue that, although not fully appreciated by the judiciary, the Malaysian statutory language actually contains a truncated process whereby a judge may reduce the contractually stipulated amount to a reasonable sum, as opposed to declaring the clause void in toto .

Teng and Kalaiarasu’s paper lends some additional force to DiMatteo’s main thesis that there is a fundamental incoherence in the English common law penalty rule—even as far back as the nineteenth century, English jurists had attempted to forcibly break ties with the home jurisprudence in the Indian Contract Act. The question is whether the common law can today find a satisfactory resolution to the tensions within the penalty rule. However, this is an area that does not necessarily permit easy answers. The unconscionability framework pressed by DiMatteo may need further engagement, the impact of the ‘legitimate interest’ test upon consumers requires attention, and the desirability of permitting a judge to reduce the penalty to a reasonable sum is deserving of consideration. This may be an area where we see more divergence in the common law world yet.

Unfair Terms

Several papers through the conferences were predominantly concerned with unfair terms. Although more concerned with assessing the manner in which jurisdictions are grappling with the lack of any negotiation in digital consumer contracts, Prasad and Mishra’s paper was concerned with the broader issue of consumers entering into unfair bargains. In his paper on the duty of good faith in standard form consumer contracts, Nicholas Mouttotos carries this discussion forward in another jurisdiction whose contract law follows the Indian Contract Act template—Cyprus. Mouttotos presents the reader with an interesting case study of a jurisdiction that is more wedded to the classical framework where procedural unfairness is an area of concern, as seen in the regulation of vitiating factors like fraud and coercion, but maintains an aloofness with respect to substantive unfairness. In fact, as Mouttotos points out, although Cypriot courts eagerly call upon English jurisprudence in contractual matters, they have steadfastly ignored the English courts’ advancement in the area of consumer protection. Thus, in Cyprus, the EU Unfair Terms in Consumer Contracts Directive is interpreted through a rigid, and somewhat archaic, English common law lens of requiring merely an absence of dishonesty. Although Mouttotos provides some hopeful examples of a shift in the Cypriot judicial approach towards increased consumer protection, his paper is an intriguing case study of the limitations of legal harmonization projects.

Mouttotos’ paper also reminds us that although other jurisdictions may be tied to the English jurisprudence through historic circumstance, it is no guarantee that modern English law will be accepted, closely followed or even properly understood. We can put Saloni Khanderia’s exploration of the Indian jurisprudence of fundamental breach in the latter category. In her paper, Khanderia shows that mid-twentieth century English jurisprudence that struck down unfair exclusionary clauses on the pretext of fundamental breach, and which was subsequently overruled in England, continues to be enforced by Indian courts. English courts gladly accepted the legislative intervention of the Unfair Contract Terms Act, closing the door upon their previous decisions now that they were provided with a new framework, which allowed them to deal with exclusionary clauses on their own terms without invoking the ill-fitting glove of fundamental breach. However, Khanderia demonstrates that the Indian courts appear to have completely misunderstood the current status of English law and the overreach committed by that earlier line of cases. Intriguingly, Khanderia concludes that Indian courts should call upon the UNIDROIT Principles of International Commercial Contracts as providing a set of indicia by which to ascertain whether a breach is fundamental, excluding recourse to English jurisprudence, which she characterizes as fragmented across statutory realms.

It is notable that both authors favoured the utilisation of supra-national rules to advance the national doctrine. And here, we must mention of Stefan Vogenauer’s excellent keynote address in the second conference, where he summarized some of the findings of an ambitious comparative study with which he is engaged, along with Mindy Chen-Wishart and others—the Oxford University Press project, Studies in the Contract Laws of Asia . The project has six planned volumes of which three have been published, and looks at thirteen Asian jurisdictions, which have inherited a western legal tradition through the process of colonization. The project evaluates how such laws have been received and in what form they have sustained themselves, if at all. In his keynote, Vogenauer summarized his categorization of the types of legal transfers that he found in the case studies of the various countries (Vogenauer 2021 ), which were written by experts in the domestic laws (Chen-Wishart and Vogenauer 2021 ). At times jurisdictions have rejected a legal principle (‘rejected transfers’), while at other times the principles have been reshaped to fit the local culture of the host jurisdiction (‘localised transfers’). Not all transfers are uneasy fits, however. Some concepts that have not been imposed upon the host jurisdiction nonetheless find their way in through caselaw (‘irrepressible transfers’), and in other places, despite the originator jurisdiction subsequently reviewing its own approach, the host jurisdiction remains wedded to the transfer (‘sticky transfer’). He noted that, by and large, the contemporary contract law jurisprudence in these jurisdictions is heavily influenced by the inherited western jurisprudence. For example, Asian jurisdictions with a civil law influence are freer with their use of good faith in their decisions, while the jurisdictions with a common law influence steer clear of such language, constraining themselves to inquiries into reasonableness. However, this path dependency is nonetheless tempered by the presence of ‘rejected transfers’ and ‘localised transfers’, which demonstrate a somewhat uneasy assimilation of legal traditions.

Within this context, then, Mouttotos and Khanderia’s papers appear to be illustrations of a kind of ‘sticky transfer’ as in both papers the jurisdictions (Cyprus and India) remain faithful to an English approach which has been subsequently discarded by the UK. As already noted, the reasons and motivations for such judicial hesitancy is not always apparent. Both jurisdictions have a statutory text with which they must contend, although some of this hesitancy may be the result of not closely following UK developments. We do not wish to suggest that these jurisdictions should follow the UK approach. It is merely interesting that both jurisdictions appear to espouse an affinity with English law, yet nonetheless diverge quite markedly in application. With such a conservative judicial impulse on display, we wonder if the use of EU directives or UNIDROIT principles can be expected to be successful. Indeed, in commenting on Mouttotos’ paper, Jan Halberda pointed out that even the UK had limited the scope of application of the EU Unfair Terms Directive in the context of banking practices, Footnote 4 by limiting the duty to include terms in good faith only to ancillary terms. This might be an exercise in ‘defending against’ what could be seen as a ‘legal irritant’. In light of these discussions, we were struck by the thought that the potential success of legal transfers is an area that is deserving of further attention and review. What are the circumstances that would make it more or less likely that a particular legal transfer would be successful? We believe that projects like Studies in the Contract Laws of Asia could hold interesting implications for such questions and, consequently, the design and implementation of future harmonization projects.

Precontractual Representations and Warranties

The division between tort and contract, and whether such division even exists, is perhaps one of the trickier modern legal quandaries. This is a matter of sufficient import as it surfaces in various contexts—such as whether all breaches of contract can be deemed negligent (Furmston 2017 , pp. 32–33), or whether a claim properly sounds in contract or tort. In their paper, Gautam Mohanty and Gaurav Rai grapple with this distinction within the context of pre-contractual statements and the appropriate measure of damages. They explore the distinctions between a contractual measure of damages and the tortious measure, and then compare the developments in the UK with Indian law, which they show is developing a different strand of thought. They argue that in India the statutory language for any claim arising out of pre-contractual misrepresentations, whether fraudulent or not, actually contains the contractual measure of damages, but one that is not constrained by foreseeability nor subject to liquidated damages clauses. As we understand their argument, the Indian Contract Act would justify treating material pre-contractual representations as both contractual—an indemnity of sorts, unhindered by arguments of remoteness of damages—and tortious insofar as the parties would not be permitted to negotiate the extent of their liability contractually. This is certainly an intriguing and novel argument. Although Mohanty and Rai’s paper was limited to the treatment of precontractual statements, Sonal Kumar Singh mentioned that there is perhaps some further exploration that is also desirable for conditions and warranties that are expressly incorporated into a sale agreement, and how they interact with the Indian Sale of Goods Act, 1932 and the measure of damages therein.

Coming to the written warranty then, Manasi Kumar and Nishtha Pant explore the contract-tort dichotomy in relation to express, written warranties by contrasting the developments within the US and the UK. Kumar and Pant demonstrate that US jurisdictions continue to grapple the long shadow cast by Samuel Williston, who characterized the warranty as a ‘quasi tort’ (Williston 1909 , § 197), in deciding whether reliance is a necessary element to prove a breach of warranty. However, in recent years, the issue of reliance is surfacing within the context of express warranties that are incorporated in the written agreement, which were understood even by Williston as being contractual in nature. As some US jurisdictions struggle with the dividing line between contract and tort, Kumar and Pant argue that the UK is creating an artificially stark divide between the two. UK courts have treated the warranty as a creature of contract for over a century, distinguishing it from a misrepresentation by putting the focus upon whether the speaker intended to undertake contractual liability. This has served the UK well so far in protecting the written warranty as a contractual term. However, today the divide is becoming almost impenetrable with the UK High Court contesting whether a written, incorporate warranty could ever even contain within itself the seeds of a representation, such that the UK Misrepresentation Act, 1967 could apply. It has been observed that there is nothing within the ‘law of nature’ that makes the warranty inherently a creature of tort or contract (Atiyah 1971 , p. 350), and this paper demonstrates that this inherent uncertainty continues to throw up challenges despite the approach taken.

On a related note, not only is the nature of the warranty at issue in a contract, but, as pointed out by Franco Ferrari, the nature of a dispute resolution clause is also one that is garnering attention and controversy. Speaking of choice-of-court and arbitration agreements, Ferrari raised another distinction within contractual clauses—procedural or substantive—and the impact that could have upon remedies. Footnote 5 If such a contract is classified as a procedural agreement, jurisdictions are unlikely to permit any damages for breach of contract. However, in jurisdictions that conceptualize the failure to abide by such a contract as breach of a substantive agreement, the logical conclusion is that contractual damages should be permitted, which opens up a host of interesting and related questions about the measure of damages.

Force Majeure

With the devastating and far-reaching impact of a force majeure event like Covid 19, it is no surprise that there is interest in the law of impossibility. In their paper on the law of impossibility in the UK and Australia, Sagi Peari and Zam Golestani—picking up on the ubiquitous and infamous question of timing in contract—argue that the proper understanding of the conceptual underpinning of the law of impossibility is that it is more akin to the doctrine of mistake, insofar as the parties did not reasonably foresee the dramatic supervening events at the time of entering into the contract. If the parties did not reasonably foresee the events—a high threshold according to the authors—then any interference discharges the contract, no matter how slight. We understand them as finding the ‘foundation of the contract’ to be the more appropriate juristic basis for the law of impossibility, rather than the currently favoured ‘radical change in the obligation’, which looks more at how the parties’ performance is being affected rather than whether the parties ever understood themselves to have undertaken to perform in these circumstances.

Peari and Golestani then critique the common law’s failure to permit the parties’ to return to the status quo ante . They argue that the law of unjust enrichment is called upon to assist but it is an uneasy fit, at best, as it depends on the absence of contract whereas in such situations there was most assuredly a contract at the time of contract formation. They argue that technically under contract law principles the loss should lie where it falls as the contract existed up until the point of discharge. But, according to them, where contract law is not useful, property law can step in by recognizing the parties’ proprietary interests in goods and money, necessitating a return of all property to the other party. The role and influence of the Law Reform (Frustrated Contracts) Act 1943 (the 1943 Act) was discussed in this context. Would legislative intervention be a favoured route to take? Our discussant David Cabrelli pointed out that not only is there little case law on the application of the 1943 Act to date, but commercial parties have resorted to extensive contract drafting so as not to leave anything to chance if it can be avoided and to place their own chosen solutions to unforeseen events in place of those in the 1943 Act.

The Role of Other Disciplines

As seen above, contract law is not a self-contained space and several of the papers demonstrate its interaction with different legal fields—whether tort (Kumar and Pant; Mohanty and Rai) or property (Peari and Golestani). But there is also a limit to what the judges can do. Ordinarily, where the answers to specific legal questions are dependent upon larger policy considerations that must be carefully weighed and considered, the courts defer to the legislative arm of the state. However, even in the absence of such legislative action, cross-disciplinary engagements like law and economics have proven themselves valuable and are worthy of consideration. For example, in his paper, Mitja Kovac argues that a law and economics approach actually provides a defence to the now-disfavoured mailbox rule of acceptance. Where doctrine has been commonly understood to have become anachronistic on account of the changed contracting behaviours of parties, Kovac argues that the orthodox mailbox rule contains the best allocation of risk between market players in order to promote efficient early reliance. And in a very interesting part of his paper, Kovac makes suggestions for future scholarship considering newer developments in the field of behavioural economics. He points to a study where the authors conclude that contracting parties seem to find real intention (a commitment to the deal) in specific, formal moments in the contract life cycle (e.g. signing, payment, possession), which has implications for how courts should understand consent, both in formation and performance of the contract. For example, with regard to debates about the proper role for contextualism and what weight should be given to the formal text, it has been suggested that the question is not whether to have a formalist or a contextualist approach, but rather ‘what degree of formalism?’ (Mitchell 2019 , p. 123). Perhaps as we look to answers to such a question, the field of behavioural economics may assist in identifying the contexts in which a higher degree of formalism more accurately reflects the parties’ intention.

Of course, none of this is to suggest that such approaches would necessarily be correct or persuasive, but that they are worthy of careful consideration. In fact, Kovac’s own thesis was distinctly challenged by our discussant Nigam Nuggehali who fondly recalled seminars on the subject during his time at Oxford which had centred on the morality of promises as the essence of the legal relationship initiated by contract, as outlined also in Chen-Wishart’s keynote speech, as opposed to its economic success or wealth maximisation. Nuggehali preferred to use the principle of estoppel to counteract any moral hazard issues. Hector MacQueen agreed, recalling his deliberations on the mailbox rule in his role as Scottish Law Commissioner. In addition to Mads Andenas observing the role of legislatures to decide the issue, Nilima Badhbade pointed out the further implications of courts’ jurisdiction depending upon the location of the acceptance, which in turn affects the practical procedural factors for a claim’s prospects of success.

If we had to summarize the essence of our project, it would be that this was an exercise in evaluating what, if anything, was a ‘common law’ approach to contract law in the new millennium. We are constrained to conclude that we are unsure. Our participants have deftly illustrated the different approaches taken to various issues around the common law world. Jurisdictions are not closely mirroring the English jurisprudence. Some prefer a more traditional English approach, while others eagerly innovate. English jurisprudence has itself undergone vast shifts and is in the midst of a few more. The gulf between these jurisdictions appears to, therefore, be widening. And we are left with even more questions and open avenues of investigation. But this development also brings with it an excellent opportunity. As the commercial realities shift and strain against legal doctrine, we have for ourselves an intriguing laboratory of related jurisdictions which we can monitor to observe which ones appear to have the most success in dealing with specific challenges. We, therefore, hope that further studies may continue and refashion a new question—what should a ‘common law’ approach to contract law look like in the new millennium?

Our free content can be viewed here: https://lcf-academic.org/lcfjindal-gls-conference-series-2021 . Full event recordings are available for a fee here:  https://www.eventbrite.com/e/357425237507 .

The Eurymedon , [1975] AC 154, 167.

These were two cases decided together: Cavendish Square Holding BV v Makdessi and ParkingEye Ltd v Beavis , [2015] UKSC 67.

Director General of Fair Trading v First National Bank plc [2001] UKHL 52; Office of Fair Trading v Abbey National plc and Others [2009] UKSC 6.

A prominent example remains Case C-185/07, Allianz SpA, formerly Riunione Adriatica di Sicurtà SpA and Generali Assicurazioni Generali SpA v West Tankers Inc. (Court of Justice of the EU, Judgment of 10 February 2009), where a breach of the contractual arbitration agreement occurred by filing proceedings in an Italian court—which in the instance was arguably the forum conveniens —and which could not be remedied by way of an anti-suit injunction issued by a UK court.

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Kumar, M., Heidemann, M. Contract Law in Common Law Countries: A Study in Divergence. Liverpool Law Rev 43 , 133–147 (2022). https://doi.org/10.1007/s10991-022-09312-8

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Published : 14 July 2022

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4 Contract Law and Intellectual Property Transactions: Research Perspectives

• Published: May 2021
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Contract law is a key component of the intellectual property (IP) ecosystem: contracts are the legal vehicles by which IP rights can be lawfully used by third parties. Contracts are the essential tools by which IP owners can monetize their rights. Making sure that contract law can perform these critical missions requires understanding the complex interactions between IP law and contract law. Analysing these interactions is obviously not a new research venture. However, there are still many areas that call for further research and scientific activity. Exploring the interactions between IP and contract law is not only scientifically relevant, but it also has a high practical significance because of the uncertainty surrounding certain legal issues arising in (international) IP transactions which generate high transaction costs. The interactions between IP and contracts are multifaceted and raise numerous methodological challenges and doctrinal questions. This short piece will focus on a few of them (obviously without claiming to be exhaustive). These legal issues can be classified into two categories on which the article will focus and which depend on whether these issues relate to the internal relationship between the parties to an IP transaction or whether they affect external third parties.

I. Introduction

Contract law is a key component of the intellectual property (IP) ecosystem: contracts are the legal vehicles by which IP rights can be lawfully used by third parties. Contracts are the essential tools by which IP owners can monetize their rights. Making sure that contract law can perform these critical missions requires understanding the complex interactions between IP law and contract law. Analysing these interactions is obviously not a new research venture. 1 However, as will be illustrated in this paper, there are still many areas that call for further research and scientific activity. Exploring the interactions between IP and contract law is not only scientifically relevant, but it also has a high practical significance because of the uncertainty surrounding certain legal issues arising in (international) IP transactions which generate high transaction costs. 2 From a policy and regulatory standpoint, there is a strong need to contribute to the reduction of the transaction costs of IP-related agreements. 3

In spite of the key importance of contractual mechanisms for the commercialization of IP rights, one must note (and regret) the almost complete lack of harmonization of the substantive law and rules that are applicable to IP transactions at the international level. There are indeed only very limited references to IP transactions in international IP regulatory instruments. 4 From this perspective, there is a significant gap between the (high) level of international harmonization of IP law (resulting from the numerous international IP conventions including the TRIPS and the various World Intellectual Property Organization (WIPO) IP treaties) and the almost non-existent level of harmonization of contract law with respect to IP transactions. 5 Contract law is and remains local (and is regulated mostly at the national level—sometimes at the regional level). Contract law is further, deeply anchored in local legal cultures and traditions (civil law or common law) which make international harmonization more complex, in spite of the fact that many IP transactions have a global reach.

Even if contract law were harmonized globally, this would not be sufficient because contract law is not the only applicable law in international IP transactions. There are indeed many diverging local legal rules beyond contract law, particularly those resulting from local IP laws, 6 that can constitute a blocking factor hampering the creation of a global IP transactional level playing field. It is regrettable in this respect that the initiatives (and calls) made by leading experts of IP transactions for harmonizing the law governing IP transactions at the international level have not led to any major outcome (yet). 7

II. The Differences and Interactions Between Intellectual Property Law and Contract Law

The interactions between IP law and contract law are complex and manifold. One area (of both practical and scientific interest) relates to the application of the property-rights aspects of IP law in the context of IP transactions in spite of the fundamental difference of nature between IP rights and contractual rights.

Even if the legal nature of IP rights is (still) debated among scholars (at least under certain legal systems), IP rights are generally considered as property rights. 8 The consequence of treating IP rights as property is, in particular, that IP rights can be enforced against any third party, 9 and they can be alienated. 10

IP rights have an effect erga omnes (from the Roman law/Latin terminology meaning ‘against everyone’ 11 ) therefore IP rights are considered absolute rights (i.e. they can be enforced against any third party). By contrast, as a matter of principle, 12 contract law and contractual rights (and obligations) apply only between the contracting parties and consequently have no (positive or negative) impact on third parties: they have an effect inter partes (from the Roman law/Latin terminology meaning ‘between the parties’) 13 so that they are considered as relative rights (i.e. they are binding only on selected parties).

This basic and clear difference between absolute property-based IP rights and relative contract-based rights (and obligations) can lead to complex interactions in the context of IP transactions in various circumstances, which evidence the need for (continued) scientific activity on these challenging topics.

One facet of the issue is whether and to what extent freedom of contract (which is a key tenet of contract law at the global level) can affect the IP system, specifically by making changes to the property aspects of the IP system, which can constitute a form of private ordering. This private ordering allows IP owners to attempt to obtain more IP-like protection by various means, including by contract beyond the protection that they benefit from the IP statutory regime of protection. 14

As will be illustrated below in the non-exhaustive research questions that will be discussed (see Section III below), it is essential that the analysis of the legal issues that lie at the intersection between IP law and contract law shall take into account the relevant contract law doctrines and methodologies. The methodological challenge can sometimes lie in the proper identification and application of the relevant general principles of contract law. Other methodological challenges can also arise (depending on the legal system), including whether IP contracts, in addition to being governed by the general principles of contract law, are governed by specific sets of statutory rules. In certain contract law systems, specific statutory rules govern certain types of IP transactions, such as licensing or franchising agreements, while in other systems, there are no specific rules so that these IP transactions (and specifically IP licensing 15 ) may be governed by analogy by rules applicable to other types of regulated contracts.

III. Research Questions

The interactions between IP and contracts are multifaceted and raise numerous methodological challenges and doctrinal questions. This short piece will focus on a few of them (obviously without claiming to be exhaustive). 16

These legal issues can be classified into two categories depending on whether they relate to the internal relationship between the parties to an IP transaction (see Section III.A ) or whether they affect external third parties (see Section III.B ). 17 In spite of their classification, these issues all have in common that they raise intricate legal questions at the intersection between IP and contract law. These issues also illustrate the difficulty in distinguishing between the respective scope and reach of IP law and of contract law as well as the importance of using contract law doctrines and methodologies in addressing IP transactional issues.

A. Research Questions Relating to the Relationship between the Parties to an Intellectual Property Transaction

This Section will discuss two areas evidencing the (sometimes) conflicting interactions between IP law and contract law in the internal relationships between the parties to an IP transaction. Though these issues may potentially arise in different types of IP transactions, the focus will be on IP licensing which is the most common form of IP transactions. This Section will first discuss the phenomenon of private ordering as it can result from IP transactions (see Section III.A.1 ). It will then turn to the issue of the enforcement of the licensed IP rights against the licensee (see Section III.A.2 ).

1. Intellectual Property Transactions and Private Ordering

The emergence of ‘private orderings’ in the field of IP law is a well-identified and already quite carefully observed phenomenon. 18 The risk posed by private ordering in IP law is that private sources of control and of power may negatively affect the balance of competing rights and interests, which is anchored in the IP system and which may be endangered by such private ordering (particularly for the protection and preservation of the public domain). Contracts are a natural source of private ordering. By entering into a contract, the contracting parties essentially define their own legal universe. In an IP setting, contracting parties may attempt to derogate from the statutory regime of IP protection and to agree on an allocation of contractual rights and obligations that may significantly differ from the allocation that results from the IP system. Private ordering is, however, not limited to contracts and to legal transactions. Non-legal sources of control and power can also be the source of private ordering. Technology (and specifically technological protection measures (TPM)) can indeed define how an IP protected good (specifically a copyrighted work) can be accessed and used irrespective of what IP law and specifically copyright law would say. 19

Private orderings are of an even higher relevance in our digital and connected world as a result of the omnipresent (and potentially oppressive) power of global Internet platforms to dictate unilaterally the terms and conditions to their (billions of) users. This power generates a growing scrutiny and triggers more intensive governmental actions and litigation way beyond the area of IP law (including data protection law, consumer protection law, and antitrust law). 20

Given the importance of private ordering and of contracts in the IP ecosystem, there remains a need to assess whether and to what extent contract law and contractual obligations affect the balance between competing rights and interests at the core of the IP system. This raises the issue of the limits of the freedom of contract with respect to IP and specifically to copyright transactions/copyright licensing.

As a matter of principle, the general view is that contracts cannot create additional rights for the benefit of the IP owners that would go beyond the statutorily granted IP rights. This could, by way of illustration, result from a contractual provision in a license agreement that would purport to exclude the fair use of the licensed work by the licensee, or of another use that otherwise would be covered by an exception or limitation to the scope of protection under copyright law. The view is generally expressed that copyright exceptions and limitations are mandatory therefore they are not waivable by contract. 21

In other words, contracts cannot circumvent and trump the mandatory nature of (certain) copyright exceptions and limitations and, more generally, of other exceptions and limitations anchored in the various IP statutory regimes of protection. 22 This issue whether certain IP core values and principles that are reflected in IP laws can be amended (or not) by contract is not limited to copyright law and can also affect other areas of IP law. The question particularly arises with respect to the doctrine of exhaustion of IP rights (or first sale) by which the first sale of a tangible product incorporating the IP at issue (e.g. a book) exhausts the right of control of the IP owner over that tangible product (so that that product can be resold), irrespective of the contractual provisions that may aim at restricting the subsequent sale and use of such tangible product. 23 The issue may also arise with respect to certain IP rights that may be considered as inalienable under certain copyright regimes (such as moral rights).

Other sets of mandatory legal principles can similarly preclude contracts from unduly disrupting the delicate balance of competing rights and interests that is needed in order to promote and maintain an innovation-friendly ecosystem. Competition law plays a major role in this context. 24

2. The Enforcement of the Licensed Intellectual Property Rights against the Licensee: Intellectual Property Infringement and/or Contractual Remedies?

Given their property-nature, IP rights can be enforced against anyone. 25 They can thus also be enforced against a contractual partner of the IP owner in certain circumstances. This can particularly happen to an IP licensee that would infringe on the IP rights of its licensor, for instance if the ex-licensee continues to use the previously licensed IP right after the term of the license. 26 This issue may seem trivial but it remains quite complex (particularly in light of the differences that exist between national and regional approaches and solutions). It appears essential to rely on a contract law methodology in order to help frame and address the relevant legal question at issue. This issue is essentially to define whether and under what circumstances the licensor can benefit from IP remedies against the licensee in case of breach of an IP license agreement.

This issue was at the core of the dispute that recently went up to the Court of Justice of the European Union (CJEU) in Case C-666/18, IT Development SAS v. Free Mobile SAS, in which the CJEU rendered its judgment on 18 December 2019.

In this case, 27 the Tribunal de Grande Instance of Paris declared by judgment of 6 January 2017, the claims brought by IT Development (which claimed that Fee Mobile had infringed on its copyright on the licensed software on the basis of tort law) rendered Free Mobile’s tort liability inadmissible and ordered IT Development to pay the costs. The court held that there are two separate sets of rules relating to liability in intellectual property matters. The first being tortious liability in the event of infringement of the exploitation rights of the author of the software, as determined by law. The other being contractual liability in the event of infringement of a copyright reserved by contract. The court held that, in the present case, Free Mobile clearly failed to perform its contractual obligations, providing a basis for an action for contractual liability, and not for the tortious act of infringement of software copyright. IT Development brought an appeal against that judgment before the Cour d’appel de Paris (Court of Appeal, Paris, France), requesting the latter to refer a question to the Court of Justice for a preliminary ruling, to set aside the judgment at first instance, and to declare the infringement proceedings which it had brought to be admissible. IT Development also seeks a declaration that the modifications to the software made by Free Mobile constitute copyright infringements, that Free Mobile be ordered to pay IT Development the sum of €1.44 million as compensation for the damage suffered, and, in the alternative, that Free Mobile be ordered, on a contractual basis, to pay IT Development the sum of €840,000 as compensation for that damage.

The following question was submitted to the CJEU:

Does a software licensee’s non-compliance with the terms of a software licence agreement (by expiry of a trial period, by exceeding the number of authorised users, or some other limit, such as the number of processors which may be used to execute the software instructions, or by modifying the source code of the software where the licence reserves that right to the initial rightholder) constitute an infringement (for the purposes of Directive [2004/48]) of a right of the author of the software that is reserved by Article 4 of Directive [2009/24] on the legal protection of computer programs, or may it comply with a separate system of legal rules, such as the system of rules on contractual liability under ordinary law? 28

The CJEU decided in its judgment that:

Directive 2004/48/EC … and Directive 2009/24/EC … must be interpreted as meaning that the breach of a clause in a licence agreement for a computer program relating to the intellectual property rights of the owner of the copyright of that program falls within the concept of ‘infringement of intellectual property rights’, within the meaning of Directive 2004/48, and that, therefore, that owner must be able to benefit from the guarantees provided for by that directive, regardless of the liability regime applicable under national law.

The CJEU thus left it to the Member States to decide which liability regime (contract or tort liability) shall apply, provided however that the ‘guarantees’ provided in the Directive 2004/48 shall be available (which means in practice that the tort/IP infringement liability regime will generally apply given that a standard contract liability regime will not provide for the rights granted under the Directive). 29 However, based on its broad (and potentially unprecise) wording, this judgment could potentially be understood as meaning that any breach of any clause in a software license agreement could trigger IP infringement remedies, which does not seem adequate in all circumstances. 30 It rather appears legitimate to consider that this judgment (and its holding) of the CJEU applies only to cases where the licensee’s activities—without the license—would infringe on the IP rights of the licensor. 31 In this respect, the question arises whether it is contractually possible for the parties to decide that the grant of the license shall be subject to a contractual condition, the breach of which could (automatically) annul the license. US courts seem to adopt this contract law approach by distinguishing between the breach of a condition and the breach of a contractual covenant, which trigger different legal consequences: only the breach of a condition can lead to IP infringement remedies. 32

This issue demonstrates that a contract law methodology (based on the application of contract law rules, principles, and categories, for example the distinction between conditions and covenants) can be of significant value in order to address and frame fundamental IP transactional issues, in this case by helping to identify the remedies that a licensor can have against its licensee in case of violation of the license agreement.

B. Research Questions Relating to the Impact of Intellectual Property Transaction on Third Parties

The interactions between IP law and contract law do not impact only the parties in an IP transaction. These interactions can indeed also have multiple and significant external consequences on third parties. This Section will discuss two of them: the first one relates to the enforcement of the licensed IP rights by (exclusive) licensees against third party infringers (see Section III.B.1 ), and the second one discusses one contractual issue arising in the context of FRAND licensing, which is to analyse the contractual FRAND obligations of owners of standard essential patents (see Section III.B.2 ).

1. Enforcement of the Licensed Intellectual Property Rights by (Exclusive) Licensees against Third Party Infringers

The issue whether, and in the affirmative, under what conditions exclusive IP licensees can enforce the licensed IP rights against third party infringers is an interesting example of the potential impact of an IP transaction on third parties, specifically on third parties (allegedly) infringing the licensed IP rights. This issue revisits—in the context of IP transactions—the traditional contract law canon according to which contracts do not have any impact on third parties. 33 This is a challenging question also because it illustrates the potential limits of the contractual freedom of the parties to the license agreement to independently decide this issue. Certain courts have indeed held that the contracting parties cannot validly decide on this issue by stating that contractual covenants between the parties (to a license agreement) may ‘regulate the duties between the licensor and licensee to implement the rights of the parties’, but that ‘a contract cannot change the statutory requirement for suit to be brought by the “patentee”.’ 34

This issue is of utmost dogmatic relevance because it questions the legal nature of the rights obtained by an (exclusive) licensee. 35 Is it only a contractual right and thus a relative right (i.e. a right which can be enforced only against specific third parties, in this case against the contracting party) which has an impact only between the parties ( inter partes ), or is it an absolute right which can thus be imposed to everyone ( erga omnes ), including to third party infringers of the licensed IP rights? This raises the broader issue of whether and under what conditions an IP license can be opposed to other third parties (beyond third party infringers) specifically those who subsequently acquire rights on the licensed IP rights. 36

The issue is made even more complex because of the diversity of local laws with respect to international IP licensing agreements covering various territories and thus governed by various regional or national IP laws. 37 There is consequently an important need to pursue scholarly work on these topics in order to help shape global solutions and avoid or at least reduce the need to litigate them around the world. 38

2. Fair Reasonable and Non-Discriminatory (FRAND) Licensing: What Are the Contractual FRAND Obligations of Standard Essential Patents (SEP) Owners?

The conditions and modalities of licensing of Standard Essential Patents (SEPs) under Fair Reasonable and Non-Discriminatory (FRAND) terms and conditions are intensively debated by courts, policy-makers, and scholars alike. To be clear, the debates are not limited to the interaction between IP (patent law) and contract law, but have other significant dimensions (specifically a competition law dimension that shall not be discussed here). The issue of focus here relates to the legal nature of the FRAND commitment made by owners of SEPs. This a (classical) contract law question for which contract law methodologies could and should be applied in order to help solve a pressing IP issue.

FRAND licensing demonstrates the critical importance of the regulatory ecosystem applicable to certain critical communication industries by which certain industries must accept certain obligations when they participate in the development and adoption of technological standards by standards setting organizations (SSOs). The process of standardization defines common technical standards 39 that must be used in order for a product to comply with the relevant technological standard (for instance Wi-Fi). 40 Technical standards integrate patented technologies owned by a wide range of companies, which thus become ‘standard essential patents’ (SEPs), 41 in the sense that any company wishing to use and implement the relevant standards in its products (which is then called an implementer) need a licence to use those patents. 42 This creates the risk of ‘patent holdup’, i.e. the risk that the owners of such SEPs may unduly block the use of their patented technology by implementers through the use of (or threat of) infringement lawsuits unless they get potentially excessive royalty payments from implementers who want to comply with the relevant technical standard. 43 As a result, this type of behaviour has been scrutinized under competition law, 44 and measures have been taken to prevent such potentially abusive conduct. 45

The SSOs that set or develop technical standards frequently develop IP rights policies in order to address such potentially abusive behaviours. 46 Under such policies, ‘participants wishing to have their IPR included in the standard [are requested] to provide an irrevocable commitment in writing to offer to license their essential IPR to all third parties on fair, reasonable, and non-discriminatory terms (“FRAND commitment”).’ 47

Plainly, the central element of the system is the very notion of FRAND licensing; 48 what shall be considered fair, reasonable, and non-discriminatory licensing terms and conditions remains uncertain as of today. 49 However, a preliminary legal issue relates to the legal nature and enforceability of the commitments (‘undertaking’ 50 ) that are made by the owners of the relevant SEPs to the SSOs under the applicable governing law. 51

By stating that the owners of SEPs are ‘prepared to grant irrevocable licenses’ 52 under their SEPS to third party implementers (in the formal undertaking that they make to the SSOs), the issue is whether third party beneficiaries can request the performance of such obligation, which, in turn, requires assessing whether these potential licensees (which have not directly entered into any contract with the owner of the relevant SEPs) can be considered as third party beneficiaries. This issue, which obviously depends on the interpretation of the relevant declaration under the applicable law, remains disputed, 53 it being noted that granting—by contract—rights to a third party is widely admitted at the global level. Under French law, which is of particular relevance for the discussion here (given that it is the law which governs the European Telecommunications Standards Institute (ETSI) Declarations), the view is expressed that the commitments made by owners of SEPs under the ETSI Declarations can qualify as ‘stipulation pour autrui’ within the meaning of art. 1205 of the New French Civil Code, 54 . 55 (that is as a contract with third party beneficiaries). Mr Justice Birss in the English case Unwired Planet International Ltd. v. Huawei Technologies Co. Ltd. & Anor (‘ Unwired Planet’ ) has also accepted that the doctrine of stipulation pour autrui could be applied to ETSI even though he admitted that the enforceability of the FRAND undertaking in French law is ‘not a clear cut question’. 56

Another interesting contract law question in the FRAND debate is to identify which licensing contractual terms are expected to be covered by the FRAND obligations and how these obligations must be formulated. While the FRAND debate has (logically) essentially focused on the financial aspects of FRAND licensing (i.e. the assessment and the calculation of FRAND-compliant royalties), 57 patent licensing agreements must cover a range of other contractual terms and conditions for which the question of their compliance with FRAND also arises. 58 These other components of a FRAND license must indeed also be FRAND-compliant and may also raise quite complex legal issues that courts have to address (potentially by moving away from the clauses agreed upon by the parties). 59 It must be noted from a contract law standpoint that it is generally not usual that courts shall intervene in private dealings and shall define the content of contracts instead of the contracting parties unless exceptional circumstances justify such judicial interference.

These questions confirm (in the context of FRAND licensing) the key importance of contract law doctrines and contract law methodologies in helping to address pressing issues arising in the global IP transactional ecosystem.

IV. Conclusion

In spite of the widespread reliance on IP transactions in today’s increasingly globalized and technology-dependent business world, there are still many areas of the vast universe of interactions between IP law and contract law that are still largely underexplored as of today. There is consequently a need to conduct and to pursue academic work in order to further explore the law of IP transactions. This requires the ability (and mental agility) to combine various methodological approaches in order to analyse the relevant issues in a useful and impactful manner. In this context, as demonstrated in this paper, several of the thorny issues that arise at the interface between IP law and contract law call for the application of contract law principles and doctrines in order to shed (new) contractual light on sometimes quite classical IP transactional questions. As indicated in the introduction of this paper, contracts are a key component of the IP ecosystem: contracts are the fundamental instrument by which IP rights can be used by third parties and be made available to society as a whole. From a methodological perspective, it is essential to use the legal doctrines, theories, and methodologies of contract law in order to help analyse the intricacies of IP transactions, so that IP transactions can constitute a trustworthy and predictable vehicle for monetizing, sharing, and maximizing the benefits resulting from human innovation and creativity at the global level.

  See, e.g. , Robert P. Merges , Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations , 84 Cal. L. Rev. 1293, 1293–393 (1996) .

  See, e.g. , Sonia Baldia , The Transaction Cost Problem in International Intellectual Property Exchange and Innovation Markets , 34 Nw. J. Int’l. L. & Bus. 1 (2013) .

  See   Richard A. Posner , Transaction Costs and Antitrust Concerns in the Licensing of Intellectual Property , 4 J. Marhsall Rev. Intell. Prop. L. 325 (2005) , at 327 (‘an important focus of legal reform should be on means of reducing intellectual property transaction costs’).

  See, e.g. , TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter TRIPS]; TRIPS, art. 28(3) indicating very summarily that ‘Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts’; see   Marco Aleman , Patent Transactions: Limited Regulation in the Multilateral Legal Framework and Diverse Legislation and Practice at the Country Level , in Accords de technologie [Technology Transactions] 1 ( Jacques de Werra ed., 2018) , , the book is available in open access at: https://archive-ouverte.unige.ch/unige:113029 ; in spite of the importance of international technology transfer agreements, there is no international harmonization of international technology transfer agreements (it being noted that technology transfer is mentioned in TRIPS, arts. 7 and 66(2)).

By contrast to the harmonization or even unification of other areas of international contracts, see, e.g. , for the sale of goods, the well-established United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980, 1489 U.N.T.S. 3, 19 I.L.M. 671.

  See   Michael Anthony C. Dizon , The Symbiotic Relationship between Global Contracts and the International IP Regime , 4 J. Intell. Prop. L. & Prac. 559, 564 (2009) .

This initiative has been pursued at the United Nations Commission on International Trade Law (UNCITRAL); on this development, see   Andrea Tosato , Intellectual Property License Contracts: Reflections on a Prospective UNCITRAL Project , 4 U. Cin. L. Rev. (2018) ; see also   Mark Anderson , International IP Transactions: Arguments for Developing a UN Standard , in Accords de technologie [Technology Transactions] 33 ( Jacques de Werra ed., 2018) , the book is available in open access at: https://archive-ouverte.unige.ch/unige:113029; and the blogpost of Mark Anderson: https://ipdraughts.wordpress.com/2018/01/27/potential-un-convention-on-ip-licensing/ .

Treating IP rights as property may still raises questions as to the consequences of such treatment; for a recent interesting discussion, see   Ole-Andreas Rognstad , Property Aspects of Intellectual Property (2018) .

  See, e.g. , Robert P. Merges , What Kind of Rights Are Intellectual Property Rights? , in The Oxford Handbook of Intellectual Property Law 60 ( Rochelle Dreyfuss & Justine Pila eds., 2018) (‘Property bestows rights; and thus, logically, it creates duties. Traditionally we call the entity that holds the rights the “owner”. But who holds the duties? Everyone else does. Everyone must respect the property right. That’s what it means for it to be ‘good against the world’.).

  Id. at 70 (‘IP rights come with significant powers, perhaps the most important being the power to alienate, and to grant rights to third parties generally’.); see generally   Robert P. Merges , Justifying Intellectual Property (2011) ; the principle of alienability is not necessarily applicable to all rights (particularly not to moral rights that are generally considered to be inalienable).

  See Merges, supra note 9 , at 62 (‘Property rights are “good against the world”.’).

There are exceptions to this principle, for instance in the case when a contract grants contractual rights to a third party (who can thus become a third party beneficiary of the contract); this scenario will be explored and illustrated by reference to the discussion about FRAND licensing and about the legal nature of FRAND commitments, see discussion infra Section III.B.2 .

According to the doctrine ‘ Res inter alios acta, aliis nec nocet nec prodest ’ (Latin for ‘a thing done between others does not harm or benefit others’).

  See private ordering discussion infra Section III.A.1 .

  See the major scientific contributions of Mary-Rose McGuire , Die Lizenz , Eine Einordnung in die Systemzusammenhänge des BGB und des Zivilprozessrechts (2012) ; Reto M. Hilty , Lizenzvertragsrecht, Systematisierung und Typisierung aus schutz- und schuldrechtlicher Sicht (2000) ; Louis Pahlow , Lizenz und Lizenzvertrag im Recht des Geistigen Eigentums (2006) .

It being noted that these two subcategories are not fully distinguishable given that certain issues that affect essentially the parties to an IP transaction can also have an impact on third parties. By way of example, the issue whether the parties to an IP transaction (say an IP license agreement) can contractually decide when the rights of the licensor on the licensed good (e.g. a book) shall be exhausted (exhaustion of the right of distribution/first sale) has an impact on the contracting parties (i.e. the licensor and the licensee) but also has an impact on third parties (specifically the acquirors of the licensed good who could benefit from the exhaustion of the rights).

  See generally   Reto M. Hilty , Intellectual Property and Private Ordering , in The Oxford Handbook of Intellectual Property Law 898 ( Rochelle Dreyfuss & Justine Pila eds., 2018) .

  Id. at 900 (describing that ‘right holders can use technological protection measures (TPMs) to prohibit certain uses of the subject matter of protection or to impose a specific behavior on users or they can restrain users contractually and that “[t]he two mechanisms do not exclude one another” ’).

  See   Jane Radin & R. Polk Wagner , The Myth of Private Ordering: Rediscovering Legal Realism in Cyberspace , 73 Chi.-Kent L. Rev. 1295, 1312 (1998) ; see also   Luca Belli & Jamila Venturini , Private Ordering and the Rise of Terms of Service as Cyber-Regulation , 5 Internet Pol’y Rev. (2016) .

For an analysis, see   Lucie M.C.R. Guibault , Copyright Limitations and Contracts, An Analysis of the Contractual Overridability of Limitations on Copyright (2002) ; Jacques de Werra , Moving Beyond the Conflict Between Freedom of Contract and Copyright Policies: In Search of a New Global Policy for Information Licensing Transactions , 25 Colum. J. L. & Arts 239 (2003) .

  See, e.g. , EU Directive (EU) 2019/790 of 17 April 2019, on copyright and related rights in the Digital Single Market at art. 7, providing that ‘[a]ny contractual provision contrary to the exceptions provided for in Articles 3 [Text and data mining for the purposes of scientific research], 5 [Use of works and other subject matter in digital and cross-border teaching activities] and 6 [Preservation of cultural heritage] shall be unenforceable’.

In the case Impression Products, Inc. v. Lexmark International Inc., 581 U.S. 1523 (2017); 137 S.Ct. 1523 (2017), the US Supreme Court decided that (at 1526) ‘a patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose. As a result, even if the restrictions in Lexmark’s contracts with its customers were clear and enforceable under contract law, they do not entitle Lexmark to retain patent rights in an item that it has elected to sell’; the US Supreme Court consequently made the distinction between IP remedies and contractual remedies, which is frequently complex to make; this article will not discuss further the doctrine of exhaustion. On this issue, see generally   Shubha Ghosh & Irene Calboli , Exhausting Intellectual Property Rights: A Comparative Law and Policy Analysis (2018) , and The Research Handbook on Intellectual Property Exhaustion and Parallel Imports ( Irene Calboli & Edward Lee eds., 2016) ; the application of the doctrine of exhaustion in the digital environment raises additional complexities that will not be discussed here, see the recent judgment of the CJEU in Case C-263/18, Nederlands Uitgeversverbond, Groep Algemene Uitgevers v. Tom Kabinet Internet BV, Tom Kabinet Holding BV, Tom Kabinet Uitgeverij BV of 19 December 2019; see also   Caterina Sganga , A Plea for Digital Exhaustion in EU Copyright Law , 9 J. Intell. Prop. Info. Tech. & Elec. Com. 211 (2019) .

TRIPS, supra note 4 , art. 40(1); see the recent OECD report, Licensing of IP Rights and Competition Law, 2019 , Organisation for Economic Co-operation & Development , https://one.oecd.org/document/DAF/COMP(2019)3/en/pdf ; the interaction between competition law and IP licensing is one aspect of the more fundamental interactions between competition law and IP law which is also quite intricate, see, e.g. , Alan Devlin , Antitrust and Patent Law (2016); see also   Steven Anderman & Ariel Ezrachi , Intellectual Property and Competition Law: New Frontiers (2011) .

  See Merges, supra note 9 .

  See, e.g. , Palmer/Kane LLC v. Rosen Book Works LLC, 204 F. Supp. 3d 565, 581 (S.D.N.Y. 2016) (holding that the defendant’s use of an image after the license expired infringed the plaintiff’s copyright).

Case C-666/18, IT Development SAS v. Free Mobile SAS, [17] (summary of the national proceedings).

  Id. at para. 25.

  See Christophe Caron, Responsabilité délictuelle pour contrefaçon ou responsabilité contractuelle pour inexécution ?, cjue , 5e ch., 18 déc. 2019, aff. C-666/18, IT Development SAS c/ Free Mobile SAS, Communication – Commerce Électronique , No. 3—Mar. 2020, 341.

  See   Caron,   supra note 29 .

  Supra note 13 .

Ortho Pharm. Corp. v. Genetics Institute, Inc., 52 F.3d 1026, 1034 (Fed. Cir. 1995) (citing Ind. Wireless Co. v. Radio Corp., 269 U.S. 459 (1926), at 469).

For an analysis (under Swiss law), see   Conrad Weinmann , Die Rechtsnatur der Lizenz (1995) .

For a recent discussion (under German law), see   Lea Tochtermann , Sukzessionsschutz im Recht des Geistigen Eigentums: Eine Untersuchung unter besonderer Berücksichtigung international-privatrechtlicher Zusammenhänge (2018) , and (for copyright licences), Tobias Rothkegel , Die Verkehrsfähigkeit und Bestandssicherheit urheberrechtlicher Lizenzen: Eine Untersuchung der Disparität zwischen gesetzlichem Rahmen und steigender volkswirtschaftlicher und gesellschaftlicher Relevanz der Lizenzierung Geistigen Eigentums (2019) .

  See   Johnathon Liddicoat , Standing on the Edge: What Type of ‘Exclusive Licensees’ Should Be Able to Initiate Patent Infringement Actions? , 48 Int’l Rev. Intell. Prop. & Competition L. 626 (2017) ; Jacques de Werra , Can Exclusive Licensees Sue for Infringement of Licensed IP Rights? A Case Study Confirming the Need to Create Global IP Licensing Rules , 30 Harv. J. L. & Tech. 189 (Special Symposium Issue 2017).

  See, e.g. , the two recent UK cases commented in Johnathon Liddicoat & Jacques de Werra , When can Exclusive Licensees Initiate Patent Infringement Proceedings?—Lessons for Global IP Licensing Transactions from Two Recent UK Cases , 14 J. Intell. Prop. L. & Prac. 2, 2–4 (2019) ; see also the Australian case: Vald Performance Pty. Ltd. v. Kangatech Pty. Ltd. [2019] FCA 1880 (Austl.).

The interaction between IP law (and specifically patent law) and standardization is complex. See the definition of technical standards in Understanding Patents, Competition and Standardization in an Interconnected World , International Telecommunication Union (ITU) (1 July 2014), http://www.itu.int/en/ITU-T/ipr/Pages/Understanding-patents,-competition-and-standardization-in-an-interconnected-world.aspx [hereinafter the ITU Report], at 15; certain parts of the analysis presented here are derived from previous publications, specifically: Jeff Dodd & Jacques de Werra , The Need for a Global Framework for Knowledge Transactions: Cross Border Licensing and Enforcement , in WTO: Edited Book on Trade in Knowledge ( Antony Taubmann ed., forthcoming 2021) : Jacques de Werra , Patents and Trade Secrets in the Internet Age , 134 Revue de Droit Suisse 146–64 (2015) .

Standards are of essential importance in the Information and Communication Technology (ICT) industry. See ITU Report supra note 39 , at 23–24, with a chart listing examples of international SSOs and consortia and their standards of relevance to ICTs.

For a general presentation, see (among multiple other publications) the comprehensive Report prepared for the European Commission (Directorate-General for Enterprise and Industry), Patents and Standards: A Modern Framework for IPR-based Standardization (2014) http://ec.europa.eu/growth/industry/intellectual-property/patents/standards/index_en.htm .

  See the documents and presentations made at the Information Session on Patents and Standards (WIPO/IS/IP/GE/18), WIPO, http://www.wipo.int/meetings/en/details.jsp?meeting_id=47226 and the dedicated website, Standards and Patents, WIPO, http://www.wipo.int/patent-law/en/developments/standards.html (last visited 9 April 2020); see also the interesting guide published by the Japan Patent Office in June 2018: Guide to Licensing Negotiations involving Standard Essential Patents , Japan Patent Office , https://www.jpo.go.jp/e/support/general/sep_portal/ (last visited 9 April 2020); see also Commission Communication, Defining the Union’s approach to essential patents to standards of 29 November 2017, COM (2017) 712 final, https://ec.europa.eu/docsroom/documents/26583?locale=en; for patents and standards, see the report Standards and Patents (doc. ref. SCP/13/2, 13th Sess.), WIPO Standing Committee on Patents (23–27 March 2009), http://www.wipo.int/edocs/mdocs/scp/en/scp_13/scp_13_2.pdf .

For a short description of the issue, see Judge Birss in Unwired Planet International Ltd. v. Huawei Technologies Co. Ltd. & Anor [2017] EWHC (Pat) 711 [83].

  See ‘Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements (Text with EEA relevance), OJC 11, 14.1.2011, at 285 para. 269; for a (simplified) presentation of the key competition law issues of SEPs, see the Competition policy brief, Standard-essential patents (June 2014), European Commission , http://publications.europa.eu/resource/cellar/c57ffbf7-9aeb-11e6-868c-01aa75ed71a1.0001.01/DOC_1 .

For an analysis, see   Michela Angeli , Willing to Define Willingness: The (Almost) Final Word on SEP-Based Injunctions in Light of Samsung and Motorola , 6 J. Eur. Competition L. & Prac. 221 (2015) .

This is what was done (by way of illustration) by the European Telecommunications Standards Institute (ETSI) in its IPR Policy. See ETSI Intellectual Property Rights Policy (Annex 6 of the Rules of Procedure, ‘ETSI IPR Policy’) (4 December 2019), http://www.etsi.org/images/files/IPR/etsi-ipr-policy.pdf ; see also Intellectual Property Rights , etsi , http://www.etsi.org/index.php/about/iprs-in-etsi (last visited 9 April 2020). The ETSI IPR Policy therefore provides for a mechanism of declaration by which the owners of standard essential patents commit to make their patents available to willing licensees under FRAND terms. See 6.1 of the ETSI IPR Policy (‘[w]hen an ESSENTIAL IPR relating to a particular STANDARD or TECHNICAL SPECIFICATION is brought to the attention of ETSI, the Director-General of ETSI shall immediately request the owner to give within three months an irrevocable undertaking in writing that it is prepared to grant irrevocable licenses on fair, reasonable and non-discriminatory (“FRAND”) terms and conditions under such IPR’.). Annex A to the ETSI IPR Policy (entitled ‘IPR Licensing Declaration Forms’) contains different forms to be completed and signed by the owner of the relevant IP rights under which such IP owner is invited to make a formal and binding statement according to which ‘it and its AFFILIATES are prepared to grant irrevocable licenses under its/their IPR(s) on terms and conditions which are in accordance with Clause 6.1 of the ETSI IPR Policy’. See   http://www.etsi.org/images/files/IPR/etsi-ipr-form.doc [hereinafter ETSI Declarations].

  See Guidelines, supra note 44 , at para. 285.

From a Swiss perspective, see   Rolf H. Weber , Competition Law versus FRAND Terms in IT Markets , 34 World Competition L. & Econ. Rev. 51, 51–71 (2011) .

  See   Doug Lichtman , Understanding the RAND Commitment , 47 Hous. L. Rev. 1023, 1031 (2010) (‘It is something of an outrage that the language of the RAND commitment offers so little guidance as to its proper interpretation.’).

Based on the terminology referred to in the ETSI Declarations, supra note 46 .

The governing law in FRAND disputes should also be identified and selected with more predictability as convincingly suggested by Dicky Tsang King Fung & Jyh-An Lee , Unfriendly Choice of Law in FRAND , 59 Va. J. Int’l L. 220 (2019) .

  See ETSI Declarations, supra note 46 .

Admitting the validity of contractual commitments, see Microsoft Corp. v. Motorola, Inc., 854 F.Supp. 2d 993 (W.D. Wash. 2012), in which the Court agreed that Motorola (owner of SEP) through its letters to both the IEEE and ITU [as SSOs], had entered into binding contractual commitments to license its essential patents on RAND terms (with references to prior case law: Research In Motion Ltd. v. Motorola, Inc., 644 F.Supp. 2d 788, 797 (N.D. Tex. 2008), and Ericsson Inc. v. Samsung Electronics, Co., Civil Action No. 2:06-CV-63, 2007 WL 1202728, at *1 (E.D. Tex. 20 April 2007)) and that Microsoft, as a member of both the IEEE and the ITU, is a third party beneficiary of Motorola’s commitments to the IEEE and ITU (with reference to ESS Tech., Inc. v. PC-Tel, Inc., No. C-99-20292 RMW, 1999 WL 33520483, at *4 (N.D.Cal. 4 November 1999)); these findings were reaffirmed in the subsequent decision Microsoft Corp. v. Motorola, Inc., 864 F.Supp. 2d 1023 (Dist. Court, W.D. Wash. 2012); for an analysis of this case, see   Kassandra Maldonado , Breaching RAND and Reaching for Reasonable: Microsoft v. Motorola and Standard-Essential Patent Litigation , 29 Berkeley Tech. L.J. 419, 419–64 (2014) ; for a contractual analysis of FRAND, see Roger G. Brooks & Damien Geradin, Interpreting and Enforcing the Voluntary FRAND Commitment , Social Science Research Network , https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1645878 ; for the opposite view (considering that (common law) contract theory does not constitute the proper legal basis for analysing FRAND), see   Jorge L. Contreras , A Market Reliance Theory for FRAND Commitments and Other Patent Pledges , Utah L. Rev. 479 (2015) .

On 1 October 2016, Order No. 2016-131 of 10 February 2016, modifying the French Civil Code provisions on contract law and the general regime and proof of obligations, entered into force, see The Law of Contract, The General Regime of Obligations and Proof of Obligations [Civil Code] Order n°2016-131 (Fr.).

  See   Christophe Caron , L’efficacité des licences FRAND: entre droit des brevets, droit civil et normalisation , La Semaine Juridique, édition générale , 1006, 1008 (2013) .

Unwired Planet International Ltd v. Huawei Technologies Co. Ltd & Anor (‘Unwired Planet’) [2017] EWHC (Pat) 711, para. 146: ‘Standing back I recognise that the enforceability of the FRAND undertaking in French law is not a clear-cut question. Prof Libchaber stated that there remains widespread uncertainty about the issue of whether the doctrine of “stipulation pour autrui” can be applied to ETSI. In my judgment it can be applied in that way and should be. The reason it should be applied is because the FRAND undertaking is an important aspect of technology standardisation. Holders of essential IPR are not compelled to give a FRAND undertaking but it serves the public interest that they make it clear whether or not they are doing so, and it serves the public interest that if they do, the undertaking is public, irrevocable and enforceable. To avoid hold up, implementers need to know that they can hold SEP owners to a FRAND obligation.’; the application of the French law “stipulation pour autrui” was confirmed by the UK Supreme Court in its judgment of August 26, 2020 rendered in this case, [2020] UKSC 37.

  See   Gunther Friedl & Christoph Ann , Entgeltberechnung für FRAND-Lizenzen an standardessenziellen Patenten , Gewerblicher Rechtsschutz und Urheberrecht 948–55 (2014) .

  See   Jorge L. Contreras & David L. Newman , Developing a Framework for Arbitrating Standards-Essential Patent Disputes , J. Disp. Resol. 23, 39 (2014) (referring to ‘Non-Royalty FRAND Terms’); see also   James H. Carter , FRAND Royalty Disputes: A New Challenge for International Arbitration? , in Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 67, 73 ( Arthur W. Rovine ed., 2013) (holding that ‘[t]he paradigm license term in dispute naturally would be a royalty rate or rates, on the setting of which large amounts of money could turn; but there might be dozens of other disputed terms, many with complicated (but not readily apparent) financial implications. Patent license agreements can be complex documents’).

For a discussion, see   Mark Anderson , How to Draft a License Agreement That Is Fair, Reasonable, and Non-Discriminatory: A Ten-Point Plan , 13 J. Intell. Prop. L. & Prac. 377 (2018) ; see also de Werra/Dodd, supra note 39 about the provisions of the license agreement that was validated by the UK courts in the Huawei case (relating to the non-revocability of the license and to the choice of court clause) and Jacques de Werra, Les licences FRAND : chance ou risque pour l’harmonisation globale du droit des contrats de licence de brevets? , 2 sic ! 77-83 ( 2019), available at https://archive-ouverte.unige.ch/unige:114455 .

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93 Contract Law Research Topics & Essay Examples

📝 contract law research papers examples, 💡 essay ideas on contract law, ❓ contract law research questions.

• Pepsi Company: Contracts and Privacy Issues Law essay sample: The theory applies to the case between Pepsi Company and a Seattle man where Pepsi Company included Harrier Jet in one of its TV commercials as a prize after getting seven million Pepsi points.
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A 2022 Supreme Court opinion.

Supported by

The Gun Lobby’s Hidden Hand in the 2nd Amendment Battle

In the battle to dismantle gun restrictions, raging in America’s courts even as mass shootings become commonplace, one name keeps turning up in the legal briefs and judges’ rulings: William English, Ph.D.

A little-known political economist at Georgetown University, Dr. English conducted a largest-of-its-kind national survey that found gun owners frequently used their weapons for self-defense. That finding has been deployed by gun rights activists to notch legal victories with far-reaching consequences.

He has been cited in a landmark Supreme Court case that invalidated many restrictions on guns, and in scores of lawsuits around the country to overturn limits on assault weapons, high-capacity magazines and the carrying of firearms. His findings were also offered in another Supreme Court case this term, with a decision expected this month.

Dr. English seems at first glance to be an impartial researcher interested in data-driven insights. He has said his “scholarly arc” focuses on good public policy, and his lack of apparent ties to the gun lobby has lent credibility to his work.

But Dr. English’s interest in firearms is more than academic: He has received tens of thousands of dollars as a paid expert for gun rights advocates, and his survey work, which he says was part of a book project, originated as research for a National Rifle Association-backed lawsuit, The New York Times has found.

He has also increasingly drawn scrutiny in some courts over the reliability and integrity of his unpublished survey, which is the core of his research, and his refusal to disclose who paid for it. Other researchers say that the wording of some questions could elicit answers overstating defensive gun use, and that he cherry-picked pro-gun responses.

The Bruen decision in 2022 upended Second Amendment law by sweeping away any modern-day gun restrictions that could not be tied to a historical antecedent. The ruling led to a surge in firearms cases — to an annual average of 680 today compared with 122 in the decade before. Pro-gun rulings have also risen: The 74 issued last year make up a quarter of all such rulings since 2000, according to researchers at the University of Southern California. Courts have struck down restrictions on high-capacity magazines in Oregon, handgun purchases in Maryland and assault weapons in California.

Dr. English’s brief in the Bruen case.

Here’s an example of that missing context.

The paper quotes a survey question, omitting the setup to it, which is highlighted below in blue.

Many policymakers recognize that a large number of people participate in shooting sports but question how often guns are used for self-defense. Have you ever defended yourself or your property with a firearm, even if it was not fired or displayed? Please do not include military service, police work, or work as a security guard.

Other questions followed the same pattern of omission. This one, about AR-15-style rifles, included text before and after the question in the version respondents saw, but not in the paper.

Some have argued that few gun owners actually want or use guns that are commonly classified as ‘assault weapons.’ Have you ever owned an AR-15 or similarly styled rifle? You can include any rifles of this style that have been modified or moved to be compliant with local law. Answering this will help us establish how popular these types of firearms are.

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Copyright, the Right to Research and Open Science: about time to connect the dots

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University College Dublin - Sutherland School of Law; Vytautas Magnus University - Faculty of Law

Date Written: June 08, 2024

Open Science is a broad concept which main purpose is to enable researchers to access information necessary, and often essential, to drive their own or collective research forward. It is aimed at the sharing of knowledge and information instead of their monopolization. While there has always been an inherent tension between copyright and access to information, it was amplified in the digital environment due to the additional tools (such as technical protection measures and online filters, access on demand) available for rightholders to monetize the access to digital works. In this contribution, we highlight the necessity to design a research-enabling copyright framework that provides researchers with access to the necessary knowledge, information and data, and to tackle the challenges of the future. For that purpose, we examine copyright through the prism of the Open Science movement and in the light of a ‘right to research’ and connect both to a larger, constitutional argument which suggests that enabling research through copyright law is a pressing constitutional imperative. Based on this theoretical framework, we suggest substantive and institutional modifications to copyright law, through legislative interventions and judicial interpretations that would remove significant barriers towards open science as envisaged by European and international institutions. The conflict between the proprietary interests of rightholders and the societal interests in unhindered, purpose-bound research should, in case of doubt, be decided in favour of research and open science as crucial enablers for innovation and progress. For authors, remuneration is most of the time not the primary motivation or incentive to produce research; they can often rely on other revenues (e.g. through institutional employment) and other interest prevail, such as the broadest possible dissemination of their works that will secure them reputation and career advancement. The incentive mechanisms therefore are entirely different in the research field compared to other creative sectors, an aspect that must be taken into account when designing a research-friendly copyright system.

Keywords: Copyright, open science, exceptions and limitations, right to research, fundamental rights

Suggested Citation: Suggested Citation

Luiss Guido Carli University ( email )

Department of Law, Via Parenzo, 11 Rome, Roma 00198 Italy

HOME PAGE: http://giurisprudenza.luiss.it/docenti/cv/353993

Bernd Justin Jütte (Contact Author)

University college dublin - sutherland school of law ( email ).

Belfield Dublin Ireland

Vytautas Magnus University - Faculty of Law ( email )

K. Donelaičio g. 58 Kaunas, LT-44248 Lithuania

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