Partnering Agreements as Legal Forms in Innovative Co-operations

Kristen Helms Skov & Simon Kremmer Kastrupsen

Student thesis: Master thesis

Abstract

The technological development has increased pressure on companies to constantly develop new or better products or ways to produce. The knowledge necessary to innovate does not often exist within the organisation and companies need to engage in an innovative co-operation. The cooperation can be of horizontal or vertical nature. Common to all innovative co-operations are the need to open up and give the partners access to strategically knowledge. Partnering agreements focus on joint optimization, it therefore seems suitable as the legal form for implementing the innovative cooperation. To analyse partnering as legal form for the innovative co-operation this thesis uses the business law method. In this thesis the business law method combines a legal dogmatic analysis of the partnering agreement with the theories of neo-institutional economics. The economic theories used are transaction cost economics, agency theory and game theory, the use of these show that the uncertainty surrounding the innovative co-operation are creating transaction cost preventing many innovative cooperations from even being initiated. The legal analysis of the partnering agreement shows that there are no well developed rules for partnering agreements, only indications of an expanded rule of good faith and fair dealing. This rule is too abstract to prevent an opportunistic part of using the uncertainty to create a hold-up and appropriate all gains developed through the innovative cooperation. This conclusion does also apply to the rules governing traditional agreements and not only partnering. A qualification of the partnering agreement so the the values of joint optimization are fulfilled are needed. Contract mechanisms describing routines and coordination need to be aligned with mechanisms for enforcement and dividing gains and risk (remuneration). A mechanism for renegotiation of remuneration needs to be included in the partnering agreement in many innovative co-operations. The renegotiation creates ex post transactions cost, but uncertainty in form of consequential events are a natural part of many innovative co-operations. Renegotiations therefore need to be a part of the partnering agreement. In renegotiating the partnering agreement, the parties must adhere to the principle of joint optimization. If a specialized third party chosen by both parties of the partnering agreement do not the believe that one of the parties is committed to reaching joint optimization the enforcement mechanisms will be initiated. In these situations partnering agreements are more suitable as legal forms for innovative co-operations than traditional legal forms.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2016
Number of pages166
SupervisorsKim Ƙstergaard