When it comes to external financing, the reservation against contractual networks is even stronger.
Indeed, depending on the applicable law of obligations, contracts and organizations, the network’s legal form significantly determines the allocation of liability for loan repayment, defining: (i) the person(s) in charge of repayment (whether one or more network’s participants, together or without the organization, or the organization only); (ii) whether, in case of multiple responsibility holders, this is joint or several; (iii) whether, in the case of pooling and partitioning of assets and resources as destined to the network program, the liability is limited to them or unlimited.
As regards these aspects, and keeping the analysis at a very general level, contractual and organizational networks may be distinguished because, in the latter more than in the former, liability tends to be concentrated and charged upon the network’s assets, as partitioned from the participants’ assets; while contractual settings more than organizational ones tend to rely on joint and unlimited liability217. It should be acknowledged that, under these conditions, different approaches and solutions characterize domestic legislation allowing only limited harmonization among countries.
Looking at the financial structure of single firms, law and economics theory distinguishes between defensive and affirmative asset partitioning218. In a networks’ context such a distinction could be (re-)phrased as follows. Under a “defensive assets partitioning regime” a network’s creditors may not claim any right on its participants’ personal assets out of due contributions to the network fund. This regime would encourage network participants’ investments and induce financiers to strictly monitor the efficient and effective use of network assets219. Under an “affirmative asset partitioning regime”, the participants’ personal creditors may not claim any right on the network’s fund. This regime would release the network’s financiers from monitoring the use of the participants’ personal assets and the existence of concurring personal creditors, reducing the overall transaction costs of the financial transaction220. From the perspective of potential lenders, asset partitioning is also valued for its capacity to limit a borrower’s ability to increase the risk of default by shifting resources from one venture to another221.
Other research contributions specifically concerning networks’ financing have added that, conversely, unlimited liability provides for more collateral, though increasing monitoring costs, and that joint liability creates some space for internal, “peer to peer” control, though within a “collective action” setting and with a risk of free-riding222.
The following analysis will examine whether and to what extent an adequate contractual design could reduce some of the aforementioned limitations regarding contractual networks’ financing.
4. NETWORKS’ FINANCING IN PRACTICE: RECENT EXAMPLES FROM THE ITALIAN LANDSCAPE
The observation of recent practices in Italy suggests that the formation of contractual networks is one of the tentative responses of enterprises to the challenges imposed by the current crises and the difficulties to access the credit market.
Also (but not only) due to a recent reform adding tax advantages to previous legislation on a so called “network contract” (contratto di rete), from March 2010 to December 2013, 1290 network contracts have been concluded by Italian enterprises.
Pursuant to the legislative framework provided by law no. 33/2009 (as modified by law no. 99/2009 and, more significantly, by law no. 122/2010 and law no. 221/2012), these networks are mainly established as contractual agreements in the form of multilateral contracts whereas a minority is formed as a new legal entity223.
The objectives pursued by the parties may be quite diverse but the general function of the contract may be described as a function of collaboration224. Indeed the current law establishes that a “network contract” is a bilateral or multilateral contract in which enterprises aim to, individually and collectively, enhance their innovative and competitive capability in the market, and for this purpose, on the basis of a common network program, commit themselves to cooperate in certain areas linked with their own activity, or to exchange information or (to provide) industrial, commercial, technological supply, or to jointly carry on activities that are included within their own entrepreneurial activity225.
The underlying policy objective consists of promoting the formation or the development of strategic coalitions in areas in which investments for innovation and access to new markets could be fostered by the means of collective synergies and inter-firm cooperation.
As a consequence, network contracts are being signed in sectors that are more prone than others to technological innovation (like electronics, informatics, pharmaceutical production, bio-medical appliances, innovative materials, and the like). Meanwhile sectors that are particularly affected by the current crises (like automotive, constructions and textile industries) are also quite significantly represented in recent statistics on network contracts226.
Focusing on this second observation, the issue is to what extent, and why, the network contract could be a sound response to economic crisis and, in particular, which impact could be determined on the financial perspectives of the participating firms.
4.1. The legal framework and the asset structure of the Italian “network contract”
A brief description of the asset structure of a network contract could help to define the legal terms of the above-mentioned issue.
As regards asset allocation, three models emerge.
The first could be called a “fund free” network contract. In this case no fund is specifically set up. Of course, parties may always agree to share costs, revenues and property as they would do outside a network contract (e.g. firm A buys machinery on behalf of all participants, who will then refund A for price payment). For some reasons this model has a very limited use in practice: (i) because parties tend to use models which are similar to pre-existing practices (namely the one of consortia with a separate common fund); (ii) because contributions into network funds are today subject to favorable tax treatment.
In the second model parties establish a “common fund”, inheriting the practice of inter-firm consortia. This is the most used scheme for the same reasons that have just been recalled to justify the limited use of the first model. Then, parties are requested to contribute, originally and/or periodically, into a network fund (common fund). They commit to use the network fund for the network program implementation only. To reinforce this commitment, parties very often deny any restitution right in favor of participants who are excluded or voluntarily withdraw from the contract. The law also provides that management rules are stated by the contract227.
Pursuant to the 2012 reform, within this model, network participants enjoy limited liability whenever they establish a governing body (“organo comune”) who Is entitled to act and carry on commercial activity with third parties on behalf of the participants. This is a case in which defensive asset partitioning occurs regardless the existence of a separate entity. Indeed, participants do not need to establish the network as a separate entity in order to enjoy limited liability.
As regards defensive partitioning within this model, the law is still unclear. Indeed, it refers to the legislation on consortia (preventing member’s creditors from any claim over consortium’s assets) upon the condition of legal compatibility between the two schemes. Furthermore, interpreters disagree when discussing whether this condition is met228.
A third model can be presented as a “multiple asset partitioning” network contract. Here, no common fund, as traditionally intended, is set up. Yet each participant is requested to contribute by partitioning specific assets within her/his own patrimony pursuant to the special legislation on asset partitioning in the law of companies limited by shares (art. 2247-bis, let. a, Italian Civil Code). As a consequence, scholars tend to interpret this scheme as restricted to network contracts signed only by companies limited by shares229.