Konfliktforebyggelse og konfliktløsning i IT-­‐kontrakter: Med henblikk på bevarelse av partenes relasjon

Kathrine Lejon Skjold

Student thesis: Master thesis

Abstract

The purpose of this thesis has been to determine how dispute prevention and dispute resolution can be optimized within complex and long-term IT-contracts. The parties in such relationships are normally dependent on each other, and both have a lot at stake. Therefore, the focus of this thesis has been to optimize the procedures for preventing and resolving disputes through a trade-off between cost minimization and relationship maintenance. As a result of bounded rationality and transaction costs, it is impossible for the parties to foresee all the contingencies they will encounter with in the future. Circumstances that are not regulated by the contract may arise, and this can result in conflicts. As shown in the legal analysis, writing a complete contract is especially problematic in complex and long-term ITcontracts. This is due to rapid changes in technology and difficulties of writing good requirements specifications. When solving a dispute by using Danish law, the outcome depends on how the courts interpret the contract and fill in gaps. The courts can adjust the contract or a term within it, and sometimes, the contractual relationship can also be terminated because of disloyalty, subsequently failed contractual assumptions, and unreasonableness. Conflict resolution by litigation or through arbitration is associated with high transaction costs, and a formalization of the conflict that can harm the relationship. Alternative dispute resolution like negotiations and mediation are cheaper and better alternatives for finding mutually beneficial solutions. The thesis concludes that dispute resolution can be optimized using a three-step model, where the first step is negotiations. If the parties cannot reach an agreement themselves, the conflict can be brought to the next step, mediation or ’mediation in court’. Only if the first two steps are unsuccessful, the conflict can be brought to court or arbitration. When it comes to conflict prevention, the conclusion is that the parties should pay respect to the relational aspects of the contract. Mediation in pre-contractual negotiations and regular meetings, were the parties can discuss and adjust the contract, appears to be the best alternatives for conflict preventive terms.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageEnglish
Publication date2012
Number of pages80