Claves del derecho de redes empresariales. AAVV

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СКАЧАТЬ The banks’ persistent focus on the applicant’s assets and guaranties more than on the characteristics of the project due to be financed, seems to currently reduce, rather than increase, opportunities for networks’ financing, especially in case of mere contractual networks.

      Some banks interested in network projects financing are currently exploring a different view. This interest is being significantly stimulated by the new legislation on network contracts in Italy, as presented above.

      More particularly, these banks are considering the possibility of adopting specific standards for a network’s rating within the “Internal Ratings Based Approach”²⁴³. Such an approach would imply a higher focus on the qualitative aspects of the project due to be financed, though in addition to ordinary quantitative measures normally used to assess credit merit. In this perspective banks would start to consider that “high quality networks” may improve participants’ financial rating and, consequently, credit conditions.

      What could a “high quality network” be, however? Could a mere contractual network ever qualify as “high standard”?

      Pursuant to one of the schemes proposed by a European bank to evaluate the credit merit of networks’ participants, the following elements, as provided by the network contract, would positively influence this evaluation: (i) the medium-long term of the project, consistently with the business plan; (ii) the general definition of the objectives; (iii) the general determination of the operational program; (iv) the specific determination of rules concerning relations among participants, consistently with the operational program; (v) the governance rules, including internal and external control; (vi) the accounting rules; (vii) the asset/contributions pooling, common fund, if consistent with the operational program; (viii) the asset safeguard and protection measures²⁴⁴.

      This evaluation scheme would subscribe to the hypothesis according to which contractual design and internal governance of a partnership can reinforce trust in the relation between partners and third parties, including financiers. The quality of collaboration can indeed influence the parties’ capabilities to effectively accomplish the envisioned project, eventually increasing the common assets’ value and/or raising sufficient revenues to return capital and pay interests. For example, another very significant aspect is represented by the rules concerning entry and exit in the network contract, themselves influencing the stability of the business collaboration together with the feasibility of the network programme²⁴⁵. An adequate contractual network design could then help to align the financier’s and borrowers’ incentives to “invest” in the network project. Which type of contractual design and which governance rules would better pursue this scope is an issue that deserves further analysis and investigation, also at a practical level.

      Additionally, law and economic literature also suggests that affirmative and defensive asset partitioning is due to enhance a firm’s ability to access (bank) credit²⁴⁶. Under this perspective, although the conventional tool to attain such partitioning is still the incorporation of the (firm or) network into an entity that is distinct from the one of each person participating into the (firm or) network, legal systems are evolving towards more flexible schemes of asset partitioning that do not require any establishment as an entity. After the latest development the case of the Italian network contract has followed this path. To what extent this model may be replicated in other contexts and legal systems depends on legal traditions and applicable domestic law²⁴⁷.

7. CONCLUDING REMARKS

      Within the current economic crisis, networks may not represent a panacea, nor a sheet-anchor for enterprises in distress. They may however provide opportunities for enterprises willing to collaborate for the accomplishment of strategic programs direct to improve their innovation capability and competitiveness.

      Among other obstacles, the difficulties in financing collaboration programs risk to undermine such opportunities, inducing enterprises to persist in their monadic approach to market.

      A shift from personal financing to project financing is envisioned, so that the plurality of actors involved in the accomplishment of a project becomes a source of value rather than a mere lever for transaction costs in financial contracts.

      Of course, this change cannot take place at the financial and credit market’s expenses through a shift of risk towards financiers. Such a change would be unrealistic at the present conditions.

      Not only could networks develop internal financing strategies taking advantages of economy of scale and sharing already available resources within the network, but also external financing could be promoted through an adequate contractual design able to reinforce potential financiers’ trust through the establishment of internal monitoring structures, auditing procedures, accountancy rules, cross-guaranty mechanisms, reserve funds and the like.

      The mere contractual form of a network would not represent an obstacle as such under these approaches, provided that the legislation was clear in defining the general legal framework in which inter-firm collaboration contracts could be drafted and, particularly, as far as financing is concerned, liability regimes should be determined in terms of both contractual liability and asset liability (responsabilità patrimoniale) as specifically regards asset partitioning effects.

      The recent Italian experience of legislation on network contracts shows some potential in terms of contractual design and, at least partially and at a former level, in terms of a bank’s availability to engage in a process of experimental evaluation of credit merit within a network. More can be done in terms of development of planning and accounting rules to be applied to network activities and economic interaction among participants.

      The European echo of this debate is still hard to perceive. European industrial policies are paying increasing attention to inter-firm networks²⁴⁸. By contrast, the present debate on European Contract Law is not yet adequately considering the importance of longterm, collaboration and network contracts²⁴⁹. As a result, some scholars are envisioning a path towards the definition of general principles on inter-firm networks as well as the study of model contracts²⁵⁰. What role, rights and duties should be reserved to financiers within these models? Should general principles state requirements and conditions under which networks can enjoy some level of asset partitioning and limited liability? To what extent would European intervention with regard to inter-firm networks induce any change in the Basel Accords approach towards risk concentration? Is there any room for a pro-active (rather than defensive) approach to networks in the international debate on merit credit standards? These are among the questions to which networks’ financing theory would still need to provide answers.

      CAPÍTULO 5

      Cooperation and Competition Dynamics of Business Networks: Strategic Management Perspective

SASCHA ALBERS

1. INTRODUCTION

      Strategic management is concerned with explaining superior firm performance. Researchers in this field try to find sources of (sustained) competitive advantage vis-à-vis other firms, and suggest that firms that have a competitive advantage outperform their competitors (Barney & Arikan, 2001; Powell, 2001). Various sources of competitive advantage have been identified, and represent the capstones of the dominant strategy theories: A firm’s distinct resource endowment (Barney, 1991), capabilities (Teece, Pisano & Shuen, 1997), method of interacting with rivals (Chen & Miller, 2012), and positioning in its industry (Porter, 2008). Additionally, a firm’s design of single relationships with other firms (for example, its suppliers, distribution channels, but also competitors), as well as the configuration, management and development of its overall relationships with other organizations, have together been identified as source of competitive advantage (Dyer & Singh, 1998). These inter-firm relations are СКАЧАТЬ