ABSTRACT
The emergence of the platform economy was a momentous development in early 21st-century capitalism, concentrating vast economic and political power within a small number of market entities. This power, coupled with limited oversight, has given platforms the unique capacity to establish and enforce rules governing horizontal contracts among users. These rules parallel state-made contract regulations, generating fragmented ‘shadow’ legal orders that increasingly permeate diverse sectors of the platform economy – from marketplaces such as Amazon and eBay to social media platforms (whose terms of service often contain extensive meta-contractual provisions). Despite the growing scholarly attention given to the platform economy, the phenomenon of private regulation remains underexplored. This paper seeks to address that gap by examining platforms as architects of alternative contractual rule systems. The analysis maps prevailing theoretical frameworks for these rules and outlines their structural characteristics, while also identifying the specific concerns and risks associated with this parallel form of regulation and considering possible regulatory responses. In doing so, the paper portrays a regulatory structure in formation—one emerging from the bottom up under the combined pressures of market dynamics and the unprecedented concentration of power in the platform economy.
Grochowski, Mateusz, Shadow Contract Law in the Platform Economy in Enforcing Private Regulation in the Platform Economy, pp 97-121 (Federica Casarosa and Mateusz Grochowski eds, Mohr Siebeck, August 2025, 10.1628/978-3-16-163904-3); Max Planck Private Law Research Paper No 25/18.
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