Networks of Collaborative Contracts for Innovation
This thesis analyses whether and what adaptations the Law of Contract and Contract Governance require to deal with inter-firm relationships to collaboratively co-create advanced innovation in the comparative context of English and Brazilian law. It asks how inter-firm practices to generate advanced innovation are contractually structured and whether there is a need to rethink the legal doctrine to facilitate these kinds of relationships. The hypotheses proposed in this thesis are the following. First, legal experimentalism is the most adequate approach to deal with these highly uncertain relationships – through the development of a procedural framework for the continuous and collaborative revision of the obligations of the parties involved in the project. Second, legal experimentalism in contracts to innovate is instrumentalised through the braiding (intertwining) of formal and informal (relational) contracting to propel cooperation and undermine opportunism. Third, the “low-powered enforcement” approach towards these transactions (rejecting expectation damages or specific performance but granting reliance damages for violations of the agreement), suggested in the relevant literature, requires further clarification of what constitutes substantial violations of cooperation duties. The thesis provides an original contribution in four levels. First, by surveying legal concepts of contractual networks available in the comparative legal scholarship with the potential to govern advanced innovation projects. Second, by systematising and expanding the repertoire of governance mechanisms available for coordinating these transactions, considering the comparative legal scholarship and empirical studies from different jurisdictions on this subject. Third, by undertaking an empirical assessment examining the tenets of braiding theory in the Brazilian context. Fourth, by refining the concept and applications of a duty of loyalty to the network (or to the collaborative project) as an interpretative parameter to legally regulate these relationships, identifying potential violations of duties to cooperate.