Claves del derecho de redes empresariales - AAVV

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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.

      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

      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 usually discussed under such labels as (strategic) alliances, joint ventures, or networks (Cropper, Ebers, Huxham & Smith Ring, 2008). The creation, maintenance, adaptation and termination of cooperative relationships are complex tasks that have earned the interest and attention of numerous managers and scholars alike.

      Business networks are a specific manifestation of inter-organizational relations. They consist of multiple members and are purposefully formed. In management and organization theory, they are also labeled alliance networks (Koka & Prescott, 2008), multilateral alliances (Kleymann, 2005), alliance constellations (Gomes-Casseres, 2003) or alliance blocks (Vanhaverbeke & Noorderhaven, 2001). Business networks have spread over the last years across a variety of industries, and their strategic effectiveness— that is, their means of achieving and sustaining competitive advantage — is undisputed.

      Scholars have acknowledged the role of various industry contexts that influence the design of networks in competitive interaction (Lazzarini, 2007; Vanhaverbeke & Noorderhaven, 2002). They have even observed some network-intensive industries where competition is said to take place among cooperating sets of firms rather than individual firms (Gomes-Casseres, 1994; Nohria& García-Pont, 1991; Silverman and Baum, 2002). The automobile, biotechnology, mainframe, and airline industries have all been described as being, “polarize(d) into competing alliance constellations” (Gimeno, 2004: 821).

      However, alliances and networks as cooperative relationships are inherently unstable (Das &Teng, 2000): studies regularly report failure rates of more than 50 percent (Park &Ungson, 2001). In contexts and situations where network membership is essential for firms’ economic performance, the network’s fitness and survival are major member concerns. Exits or member failures can result in troublesome repercussions for remaining partners. Especially in highly specialized networks with only a few large-sized members, the exit of one firm can lead to serious gaps in the remaining members’ service portfolio, potentially leading, in turn, to the failure of the whole network. For example, in the global airline industry, Star Alliance suffered from failures of members Ansett Australia (bankruptcy in 2001) and Varig (ceased operations in 2007), which resulted in substantial white spots on the Star route network. The remaining members from the United States, Europe, Africa and Asia were hindered in their ability to offer seamless connections to and from Oceania and South America, putting them at a competitive disadvantage. Mergers and acquisitions also impact members of competing networks. For example, LAN from Oneworld acquired TAM, a Star Alliance member, in 2012, and subsequently announced that the merged company, Latam, will turn to Oneworld for both of its airline brands. As Latam’s chief executive explained, “We evaluated all possibilities and we chose Oneworld, because it is the alliance that offers the best benefits, connections and products for our passengers, as well as better synergies for the Latam group” (as cited in Pearson, 2013).

      For this reason, network members have an interest in establishing stable yet adaptable network structures as well as in attracting

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