Claves del derecho de redes empresariales. AAVV

Чтение книги онлайн.

СКАЧАТЬ

      Networks can also be organized as an association or organization with or without own legal personality. In these cases joint ventures with corporate form, cooperatives and second degree cooperatives, groups of economic interest, consortiums, and horizontal groups are the more important cases.

      Corporation is not a good framework for a network relationship. In the case of corporate joint ventures it certainly provides the parties with a veto right but the consequence is the increased risk of inoperability of the common business enterprise. The tendency of corporate joint ventures in face of internal difficulties is usually to be blocked and finally their dissolution. In consequence corporate joint ventures are not an efficient framework for the cooperation or the coordination of the parties’ entrepreneurial efforts.

      Corporate model itself presents important difficulties to be a comfortable framework to improve the cooperation and solve easily some important problems of the business cooperation which are typical in network relationships.

      Gains in business networks are determined ex post in response to the activity undertaken by its members but at corporate level a fixed allocation is predetermined in consideration of the owned share capital instead of the performance realized⁹.

      The business decisions of network members — whose performance determines the network activity — are autonomous and may be coordinated but at corporate level decisions are take in collegial form by majority. Also in corporate joint ventures business decisions are taken by members in an autonomous form, the corporate board of directors being only a formal structure to execute the individual business decisions of the members or just a forum of discussion.

      Company members do not have to operate a business and, if they do it, they do not need any connection between them. On the contrary the members of the network are all entrepreneurs and perform linked economic activities parallel or complementary.

      The inadequacy of the corporate structure is yet more evident in the case of contractual networks — that shall not be conceived in our opinion as associations — and in particular in relationship with entry and exclusion of the networks members.

      In the most of contractual networks as the distribution networks or in outsourcing networks, where the network has a direction personified in one of the members — for example a franchisor or the car company —, admission or exclusion of a network member depends, unlike what happens in the corporate field, only from the decision of the network’s head according to the principle of private autonomy typical of bilateral exchange agreements.

      In fact, that principle allows the head of the network to accept or reject as a member of the network — with some limitations at the case of “open networks” as cooperatives or selective distribution systems — the other members or potential members.

      At least the application of the company rules to business network involves the impossibility of giving adequate solutions to specific network problems.

      Other organizational structures such as cooperatives, consortiums or EIG are more adequate. All of them are designed as coordination structures but they imply the existence of a common interest of the parties and, as discussed in the next section, in networks there is a dialectic relationship between a parallel interest of the parties and a divergent interest of them without a common interest.

b. The question of the network interest

      The exchange bilateral contracts are characterized by the confrontation of the legitimate interests of the parties — not only in cases win/loss but also in cases win/win —. In these cases each party defends its own legitimate private interest and shall not pay attention to the other party interests —with some increasing exceptions in the case of long term, intuitu personae, trust or fiduciary contracts —. Only in the case of collaboration agreements — typical network contracts — we recognize the existence of a parallel interest shared by the parties and the existence of a shared interest with consequences both in the interpretation and integration of the contract and in the parties’ rights and duties. In the case of companies and associations there are always a common interest and private divergent interests of the members or stakeholders which are external, irrelevant in relation with the definition of common interest. In case of confrontation between common interest and shareholder divergent interest the board of directors of the company shall always follow the first.

      In EIG, consortiums, and horizontal groups there are a crescent weakening of common interest and a progressive recognition of the legitimacy of parties’ private interest. In these cases the confrontation between the common interest and the members' divergent interest do not always imply that the second shall submit to the first.

      Networks find themselves between contracts and companies — also when they are expressed in a contractual or organizational form — and we recognize in them the existence of a dialectical relationship between two types of interests held by their members. The interest to create value as shared interest is individual for each member or contractual party — each member or party has the same interest in parallel with the others — as individual is the divergent interest to the allocation or sharing of created value.

      Both interests are expressed in the business activity of the organization and in the business activity of the members of the organization — network expressed in an organization — or in the business activity of contractual parties — contractual network— and both are legitimate in networks¹⁰. If it is easy to recognize the shared interest as a network interest we must also recognize that the divergent interest is also a network interest — just as our prior logic rejects the possibility of a particle being at the same time in two places following the quantum physics theory —.

      As in networks the amount of value obtained for each member depends of the exercise of its own business activity — and is not fixed in relative terms as in companies — the marginal oscillation between the minimal and the maximum gain possible for each member is limited without the acquisition of new quotes of the market through the efficiency and competition or in the case through an arbitrary decision of network head.

      That makes that nor company regulation nor exchange contracts regulation may be recognized as an adequate framework to deal with the relationship between the two kinds of network interest. In the case of company or organization regulation this is so because these regulations impose the prevalence of common interest in opposition to private divergent interest of parties. In the case of exchange contracts regulation because this imposes the prevalence of the parties' private interests.

      The harmonization of interests is in consequence an important goal for a network regulation.

      An efficient network regulation requires a legal framework that legitimizes both interests — the shared interest as well as the divergent — and shall explain with detail the parties’ or members’ relationships and the cases of prevalence of the first or the second interests when both are in conflict.

c. Hierarchy and market from the legal point of view

      Only some words about this central question. Business networks imply cooperation, coordination and competition between members. There is no hierarchy but limited central direction — with different degrees of extension — and the position of the members in face of the direction may vary from the complete independent coordination to the dependence.

      There is an inverse proportional relationship between market relationships between members or parties on the one hand, and the extension of central direction and the dependence of the members on the other hand.

      A legal business network regulation must take account of this typical network miscegenation and of the dialectic relationship between dependence versus independence and coordination versus market.

СКАЧАТЬ