Claves del derecho de redes empresariales. AAVV
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 enhancing the economic perspectives of the financed project. 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