Claves del derecho de redes empresariales. AAVV

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      — Parties do rely on the common fund as a contributory means to accomplish the network project; however, the common fund is rarely considered as a sufficient financial resource for network-related investments; in many cases it is very limited and this choice is not always made for reasons concerning the low financial needs generated by the network program²³⁴;

      — The contractual design of the network is also conceived as a way to ensure the greater reliability of the network with regard to the successful accomplishment of the program²³⁵;

      — Allocation of risk is often very important (particularly the risk of default in the relation with third parties and sometimes, like in the described case, the risk of unsold assets/merchandise or the like): duties of collective insurance purchase may be provided as an alternative or a complementary solution; the use of the common fund as collateral for credit relations with third parties is sometimes enabled by the contract;

      — A direct participation of banks and other financial institutions in the network contract is an emerging trend and increasing in the latest experiences.

      These practices show some of the possible applications of the network contract as a means for defining, on the basis of a mutual commitment among participants, asset allocation and management governance. Both internal and external financing find some support in contract design: so, for example, as regards contribution duties, accounting duties, asset locks, internal screening and monitoring mechanisms to reduce the risk of individual and collective default. Minor attention is paid to inefficiencies concerning asset allocation and management in particular cases. For example, when the network programme includes a multi-projects plan, managers and directors are often vested with a discretionary power whose limits are rarely defined as regards possible tunneling from one project to another. Neither are risks and liabilities always easy to define. These seem to represent some of the challenges for the future, both for practitioners and for policy makers.

      Though limited, the observation of the former practices allows to draw some conclusions on the virtues and drawbacks of contractual networks’ financing, as presented below.

5. INTERNAL FINANCING IN CONTRACTUAL AND ORGANIZATIONAL NETWORKS: WHICH PERSPECTIVES?

      Law & Economics studies show that the way enterprises define a firm’s boundaries influences, among other aspects, their financial structure and financial choices, e.g. debt leverage²³⁶. Considering the “new boundaries of the firm”, well beyond the model of the vertically integrated structure towards outsourcing, collaboration contracts and strategic alliances²³⁷, the same type of analysis could be extended from the reality of stand-alone firms to the one of inter-firm networks. Then the question can be raised as to whether the existence of a network and its legal structure enable or prevent determined financial strategies.

      The previous analysis shows that the potential for self-financing in networks does exist, although its material importance should be more carefully observed in practice and confronted with the analysis concerning networks’ structure and governance.

      At the very least, based on the previous analysis, participation in networks could allow some pooling of financial resources or some inter-firm financing as a cooperative strategy based on trust and, sometimes, reciprocity enabling forms of cross financing. Co-financing among a network’s participants can allow for the accomplishment of projects that would not otherwise be affordable by each enterprise separately without a significant amount of debt leverage.

      The described case in the construction sector (see par. 4.2) also shows that self-financing inside networks may be improved through an adequate network design both at the governance and asset levels. This can be observed in different ways in both contractual and organizational networks, provided that an explicit agreement and commitment to cooperate for the accomplishment of the common project is achieved among participants. In order to be more effectively enforceable by anyone, such agreement should take the form of a multi-party contract (due to regulate a merely contractual network or to establish a collective entity as an organizational network) rather than the form of a mere link between bilateral exchange contracts. Indeed, the multi-party contract allows parties to share objectives and modes of action and to commit to abide to common rules, enabling single participants or appointed bodies to stand for the collective interest.

      From this perspective not only the first assumption (against network financing) but also the second (against contractual network financing) should be revisited. The advantages of a contractual setting for self-financing in networks could be valued.

      As seen above, the multi-party contract could also oblige participants to financially contribute to the common project through the formation of “special purpose funds”. “Peer to peer” forms of internal monitoring could help to enforce such a commitment. Enforcement of contribution duties could be ensured through a more formalized assignment of monitoring powers to internal bodies in charge of controlling payments and sanctioning any possible breach. Indeed, the use of internal governance and monitoring mechanisms is compatible with mere contractual schemes and is becoming more and more common in collaboration contracts²³⁸. The Italian experience of network contracts shows that a participant’s exclusion from the network for lack of financial contribution is a very common sanction as provided by the contracts²³⁹.

      The role of the network contract as a means to improve the efficiency of asset allocation among different projects should also be emphasized, though the practice is still quite poor in this respect: internal auctions or other comparative procedures as well as pre-defined processes for possible renegotiation and reallocation of resources among the projects at stake could be provided by the contract design, so limiting discretion of network managers and directors under these respects.

      In the specific perspective of contribution duties, mere contractual networks could even show higher flexibility than organizational networks, especially if the law of corporations is taken into account. Indeed, once the corporate capital legislation is considered, limitations might be provided by the law as to individual financial contributions to the company²⁴⁰.

      Conversely, the law of organizations (and corporate law in particular) shows higher potential with regard to a different type of rule that has been mentioned above, concerning the asset lock over special purpose funds²⁴¹. Once financial contributions are pooled together, the effective use of these resources for the accomplishment of the common interest project depends on the level of fund partitioning, as allowed by the applicable law. As seen above, although differences exist among domestic legal systems, organizational law normally ensures both affirmative and defensive asset partitioning to a larger extent than contract law: preventing participants from diverting the pooled resources from their destination; preventing their individual creditors from seizing these goods; assigning seizing powers only to the creditors whose rights are connected with the fund’s purpose²⁴². The possibility of attaining similar effects when the network is merely contractual depends on domestic legislation but is generally limited.

      In a different way other types of “lock” on the network assets could be established on a contractual basis. Depending on applicable law, these measures might be enforceable among parties only, without being opposable against third parties. For example, parties could limit for a certain time the dissolution of joint property or could limit the participant’s right to recover his/her contribution in case of a withdrawal or exclusion, as is the case in many network contracts in the recent Italian experience.

6. CONTRACTUAL NETWORKS AND ACCESS TO BANK FINANCING

      The previous analysis demonstrates a critical view on bank financing of inter-firm network projects. In fact, moving from the European legislation on credit institutions, the interdependence among network participants’ assets and activities represents a source of concern and higher risk of credit more than an element СКАЧАТЬ