Sirpaloituneen sopimusrakenteen hallitseminen ja kaksiasianosaissuhde
Avainsanat:
sopimusoikeus, sopimus, kaksiasianosaissuhde, sopimusrajat ylittävä hallintamekanismi, sopimusverkosto, globaalien arvoketjujen teoriaAbstrakti
Contract boundary spanning governance and the doctrine of privity of contract
Fragmented and globalised production structures, consisting of numerous different actors interconnected through contracts, pose major difficulties for concerted governance. This can be seen in diverse examples, such as the catastrophe of the collapsed Rana Plaza factory building in Bangladesh or the economic fiasco of the Olkiluoto 3 nuclear power plant construction project in Finland. The author looks at how contract boundary spanning governance mechanisms can be used to govern fragmentation and what this might mean for the doctrine of privity of contract.
First, the author uses global value chain theory and one of its analytical tools as an example of how contract boundary spanning governance might be conceptualised in chains and networks of contracts. He then discusses the development of contract boundary spanning governance mechanisms in light of research into the spread of ethical standards in contract chains, the Bangladesh Accord on Fire and Building Safety, and open books accounting practices in German automotive manufacturing. Understanding how companies can and do manage fragmented production structures may help in devising appropriate legal responses.
Then, the author turns to the troubled Olkiluoto 3 nuclear power plant construction project as an example of how global value chain theory might be used to evaluate whether contract boundary spanning governance mechanisms are necessary in a given context. A further point of discussion is what alternatives exist for organising such governance. Should the regulator take an active interest in requiring parties to undertake adequate governance measures in organising their production chains and networks or should it be left to the parties to decide, and do there exist legal means for attributing liability in case of insufficient voluntary implementation of contract boundary spanning governance?
Finally, the author looks at the effect of contract boundary spanning governance on the doctrine of privity of contract. Contract boundary spanning governance seems to operate on two levels: That of the underlying chain or network of contracts and that of the superimposed governance mechanism. The governance mechanism may be a dedicated governance contract or, alternatively, it might be conceptualised for example as a duty of good faith, founded in the contract-like relationships arising between members of a contract network that are not directly party to the same contract. Either way, questions of attributing liability in such a structure will need to take into account how the underlying contracts and their parties interact with the contract boundary spanning governance mechanism.
