Rivista del Diritto Commerciale e del diritto generale delle Obbligazioni

Abstract: The Author uses the conclusions of his previous research on regulatory contracts to analyze new procedures and technologies for negotiating. The regulatory contract is characterized, among other things, by the ability to “regulate”, pursuant to Article 1321 of the Italian Civil Code, future “special” contracts not only between the contracting parties, but also between third parties with respect to the contract itself (“extra partes”). The paradigm of the regulatory contract “extra partes” is represented by collective bargaining, where the agreement entered into by the opposing professional organizations, being “more representative”, has general effectiveness in the reference sector; the collective regulatory contract is a source of clauses of use, as provided by art. 1340 of the Italian Civil Code, according to a conception of usual rule based on the representative capacity of the relevant associations. Even the activity of preparing general terms and conditions of contract can be qualified as a (unilateral) regulatory negotiation, which comes not from individual professional parties but from their associations: for example, the “Norme Bancarie Uniformi” by the Italian Banking Association (ABI). Finally, the category of the regulatory contracts can be used to explain the robotic decision in negotiations, i.e. when the relevant choices – from the identity of the counterparty to the question of whether or not to enter into the agreement – depend on an algorithm. In this case, the role of the human does not disappear completely, but it recedes to a phase prior to the negotiation, corresponding to the (human) decision to use the software. The agreement entered into between the interested party and the owner of the algorithmic formula is therefore aimed at regulating the conclusion of future contracts between the robot of the bidder and the robot of the adherent, and therefore between third parties with respect to the regulatory contract.  

Sommario: 1. Punto di partenza - 2. Il contratto regolamentare (collettivo?): la categoria e il fenomeno. - 3. L'atto di predisposizione di condizioni generali di contratto come negozio (unilaterale) regolamentare. - 4. Il regolamento dei mercati finanziari come moderno contratto regolamentare. - 5. Il contratto regolamentare contemporaneo nell’era della decisione negoziale robotica.

Keywords: Regulatory Contracts — New Technologies — Robotic Decision in Negotiations.