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      CAPÍTULO 1

      Business Networks as a Legal Explanatory Framework¹

      JUAN IGNACIO RUIZ PERIS

      I. INTRODUCTION

      Networks seem to be a natural element of organized trade.² Business networks as an economic and sociologic concept has been developed in last decades. The attention from the legal scholarship over this subject increased in the recent years in Europe.³ In fact recent works have tended to introduce that notion in the more recent pre-legislative works in European contracts Law⁴. The goal of this paper is to ask if Business networks are a different legal framework than contract and companies and if this legal framework is appropriate to solve problems that company law and contract law are unable to solve in an efficient way.

      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 relationships⁵. Contractual business networks are built over multilateral not associative contracts as the most part of strategic alliances or bilateral contracts as franchise⁶ or master franchise⁷, called in the most of the cases networks contracts. Only Italy among the European countries has introduced the concept of network contract in its law⁸ for 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 realized⁹.

      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