Claves del derecho de redes empresariales. AAVV

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СКАЧАТЬ of the encroachment and tortious interference which in some legal systems as the Spanish one may be also grounded in the duty to act in good faith and fairly.

      A network regulation or auto-regulation shall provide rules that ensure the respect of these duties.

      A network legal framework may rule in a more detailed way — as it is done in internal documents of some networks — the limits of the ius variandi and when the opinion of either the head of network or the member shall prevail.

      An internal framework of the network for a non-confrontational and efficient exercise of directive power steering also requires the dialogue with associations of members, the creation of advisory or co-makers councils and the co-development of the internal network rules of operation.

      Network governance also implies the organization of an internal dispute resolution system through mediation and arbitration. These mediators or arbitrators shall help to find solutions or give solutions to the problems between the members but also between the direction or network head and the members. In order to be efficient and in accordance with the good faith principle, a truly independence of internal mediators or arbitrators from the network direction is need. This independence may be obtained by creating a wide list of eligible mediators or arbitrators and by limiting the number of interventions of each one of them. If arbitrators or mediators are always the same and are paid by the head of network it is difficult to believe that they will act independently.

c. Ius variandi

      The change of the activity conditions implies in general the conformity of all the members in organizational networks, with the exception of cooperatives and second degree cooperatives, companies, and consortiums or EIG’s where the statutes introduce the majority principle.

      The decision to submit some or all decisions about the change of conditions to the majority — in company directory or assembly — concerns all members.

      In the case of contractual networks the change of conditions may be attributed by contract to one of the parties — the network head for example in parallel contracts' networks as franchise —. In these cases the ius variandi concerns only one of the network members, limited by abuse of right doctrine — not global accepted — an objective novatio doctrine.

      All these systems of control — consensus or majority, and unilateral attribution of the ius variandi with the limits of abuse of right or objective novatio doctrine are inadequate to regulate this question in networks, as the experience teach us.

d. Encroachment, virtual encroachment and tortius interference

      The relationship of network members with customers is a typical source of tensions between them and, in some cases, with the network head. Network direction shall coordinate its members without infringing competition rules¹². Encroachment and tortius interference are sometimes used by the network head to convert shared customers in own exclusive ones. In the last years internet development has also created problems in networks regarding the internal relationships between members and between members and network head, if any, in relation with customers — virtual encroachment —.

      In all these cases we find conducts which are far from competition by efficiency. The network head, either alone or in connexion with other network members, undertakes interference, obstruction or predatory practices affecting other members. These conducts infringe good faith and fair dealing — contractual and market ones — as well as loyalty principles.

      Interference with contractual relations, with reasonable expectations or business relations, with prospective economic advantages, and the induction refusal to deal are some groups of these kind of typical network bad practices.

      Such practices deprive network members of the possibility to obtain the benefits they can reasonably expect from their investments and limit their expectations in the market.

      The prohibition of encroachment may be grounded in the principles of loyalty, fair trade or good faith, depending on the different legal systems. Its acceptance varies from the British quasi negation to the German or Nordic firm defence.

      A legal framework for networks must deal with these three questions: the protection of investments and reasonable expectations of network members, the recognition of directory’s coordination power, and the limits between legitimate competition and illegitimate interference.

      The limits on the exercise of coordination by the network directory due to antitrust rules are, however, less relevant than it seems at first sight.

      In cases involving the network head — acting in its own benefit or giving advantage to another member of the network — customer network reallocation comes from a discretionary decision of the network head and not from competition by efficiency.

      Interference or encroachment are usually directed against highly efficient distributors for reasons clearly unrelated to competition policy such as preventing that a given member of the network gains too much internal weight or preventing the creation of autonomous power centres within the network that concede a greater bargaining power to its members.

      A hypothetical intra-brand increased competition after the encroachment or interference does not justify the potential harm to the interests of one network member not covered by the prosecution of the shared interest when the conduct does not increase the inter-brand competition.

      The exercise of coordination power to prevent encroachment or tortious interference shall not affect in any way inter-brand competition, since in these cases there is a cannibalization of customers belonging to the network and not an injection of new customers for the network.

      The exercise of coordination power by network directory in cases of internal predatory practices between members also avoids the removal of members of the network and therefore the reduction of the number of competitors in the market keeping the competitive strength of the network. It has therefore a pro-competitive nature.

IV. NETWORK - THIRD PROBLEMS

      Network members have business relationships with other businessmen and costumers — consumers or not —. A network may also be integrated in another — for example a credit cooperative member of a second degree cooperative integrated in a horizontal group part of a strategic alliance to have access to South American markets —.

      Network members have individual relationships but these affect in many cases all network members or some of them —in the case the network head —.

      Contractual and organizational regulations give not a satisfactory answer to questions like when the network relationship shall be recognized in business member/third relations, and to what extension.

      This paper deals with two of these important problems: direct action and bankruptcy.

a. Direct action

      One of the main problems to solve in network-thirds relationships is the possibility to act against a network member for the acts or omissions of another. In both organizational and contractual networks, separate legal personality of the consortium, horizontal group, EIG or cooperative or contractual parties and privy doctrine ensure the general refusal to this possibility. The described result can be obtained as a general remedy in some branches of Law only, such as antitrust law, in which the economic reality prevails over legal formality as a characteristic element, or by using some exceptional remedies such as the piercing the veil doctrine. The induction to law or contract infringement as an unfair competition act may also be used to reach this goal and the consumer protection rules as liability for defective products may also help.

      This СКАЧАТЬ