AAVV - Claves del derecho de redes empresariales

To do that I will proceed listing the main problems that may be explained and solved in a better way using the business network as a legal concept and in particular as a legal framework trying to propose some ways of solution following the network logic. I will discuss also some important concepts included in the business network legal problematic as interest or power relationship between members.

As a global study of the numerous relevant problems included in my delimitation would be impossible in these few pages I have selected some of them classifying them in conceptual problems as the role and meaning of interdependence, direction — members problems as ius variandi , horizontal members problems as encroachment, network — third problems as consumers actions against network, and network and public interest problems, as ancillary restraint doctrine.

II. CONCEPTUAL REGULATORY PROBLEMS

a. The need of a legal regulation of business networks as a tertium genus between contract and association.

As European and state members Law have not established a legal concept of business network the question of the delimitation of the object of our study remains in the constructive discussion of legal scholarship.

Business networks are organized from the legal perspective in a contractual or organizational form or in a mixed form. In all of them there is a direction — with own legal personality or not — but not a hierarchy and the relationships between members are not market relationships 5. Contractual business networks are built over multilateral not associative contracts as the most part of strategic alliances or bilateral contracts as franchise 6or master franchise 7, called in the most of the cases networks contracts. Only Italy among the European countries has introduced the concept of network contract in its law 8for contracts with the goal to increase the innovative capability and the competitiveness of the parties.

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 realized 9.

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 networks 10. 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 —.