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Digital Technology as a Challenge to European Contract Law – From the Existing to the Future Architecture

European Review of Contract Law (Forthcoming)

Stefan Grundmann (ed.), European Contract Law in the Digital Age (Intersentia, Forthcoming)

29 Pages Posted: 21 Jul 2017 Last revised: 4 Aug 2017

Stefan Grundmann

Humboldt University of Berlin - Faculty of Law; European University Institute - Department of Law (LAW)

Philipp Hacker

European University Institute; Humboldt University of Berlin

Date Written: July 17, 2017

Abstract

Offering an overview of the interactions between digital technologies and contract law, we identify three pillars in this architecture: the regulatory framework; digital interventions over the life cycle of the contract; and digital objects of contracting. The regulatory framework, which itself may draw on digital technology to effectively pursue its ends, shapes, and is shaped by, the other two pillars. More specifically, on the one hand, we show how four key technologies – digital platforms, Big Data analytics, artificial intelligence, and blockchain – are being used at different stages of the contractual process (from the screening for contractual partners to formation, enforcement and interpretation) and engender novel market dynamics that, in many instances, necessitate regulatory responses. On the other hand, digitally facilitated contracting increasingly relates to digital content as the object of the contract; however, while this area has notably been the subject of the proposed Directive on Contracts for the Supply of Digital Content and thus has received some first “European structure”, we argue that a number of important blind spots remain that fail to be addressed by the proposed directive. All in all, the use of digital technology in contracting will likely reinforce an adaptive, relational view and practice of contracting. This increased fluidity engenders a vast potential for preference-conforming, time-sensitive contracts; however, to the extent that it also mirrors novel asymmetries of information and power, the ordering mechanisms of the law may simultaneously be more needed than ever.

Keywords: contract law, digital technology, artificial intelligence, platforms, blockchain, Big Data, formation, enforcement, smart contract, relational contract

JEL Classification: K00, K12, K20, K22

Suggested Citation

Grundmann, Stefan and Hacker, Philipp, Digital Technology as a Challenge to European Contract Law – From the Existing to the Future Architecture (July 17, 2017). European Review of Contract Law (Forthcoming). Available at SSRN: https://ssrn.com/abstract=3003885

Stefan Grundmann

Humboldt University of Berlin - Faculty of Law ( email )

Unter den Linden 6
Berlin, D-10099
Germany

European University Institute - Department of Law (LAW) ( email )

Via Boccaccio 121 (Villa Schifanoia)
I-50122 Firenze
ITALY

Philipp Niklot Hacker (Contact Author)

European University Institute ( email )

Via Boccaccio 121 (Villa Schifanoia)
I-50122 Firenze
ITALY

Humboldt University of Berlin ( email )

Unter den Linden 6
Berlin, Berlin 10099
Germany
+49 30 2093 3498 (Phone)

HOME PAGE: http://hu-berlin.academia.edu/PhilippHacker

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