Le reti di imprese e il contratto di rete: profili problematici ed applicativi

This thesis concerns the issues of contractual networks and inter-firm cooperation, in particular, their difficulties and solutions for implementation in countries such as Italy, where a law already exists concerning network contract; UK; Brazil; and Spain. The thesis particularly refers to recent Italian laws on Contractual Networks as modified by the ''Fiscal Package'' of summer of 2010 and subsequent amendments decree-law 83/2012, decree-law 179/2012 and Law of ''Stabilita'  2013''. This legislative initiative was deliberately aimed at SMEs and arose from the need to address the problems resulting from the fragmentation of ownership and relatively small size of Italian firms, particularly in light of the increasing number of EU requirements. This issue has received attention at European level with the passing of the Small Business Act of 2008. This Act was designed to incentivize and enable entrepreneurs (ie SMEs) to build themselves a better business environment by tightening cooperation networks and thus more fully exploit the potential of SMEs. There are many arrangements or networks amongst firms which allow goods to be produced or services to be provided that individual companies would not be able to do on their own or at least not as cost effectively. These arrangements are forms of co-ordination that have a contractual element between the parties and are particularly prevalent in SMEs that want to increase their critical mass and have more strength in the market, without having to merge or join under the control of a single legal entity. This new legislative initiative has helped define a new way of working called network contracts. It is important to underline that the term contractual networks comprise both multilateral contracts and networks of linked bilateral contracts. For this reason, this thesis will analyse the effectiveness of this new discipline together with similar constructs, both Italian and of other nations. These constructs will include consortium, subcontracting, franchising, the structure of a temporary enterprise ventures (known in Italy as associazione temporanea di impresa (ATI)) and the Joint Venture. The objectives of this thesis are: to understand why the Italian legislature created this new legislation in partial isolation of the existing contractual framework, to examine the purpose and possible advantages and/or disadvantages of the network contract, to propose a solution for its practical implementation and to propose how multilateral contracts among enterprises might be regulated. The study will also examine the antitrust perspective of network contracts because, as with all forms of cooperation, they may give rise to uncompetitive behaviour. In addition, in order to ensure a firm legal basis for any proposals to address potential legislative gaps, this thesis will also consider the ‘freedom of contract' and the general principles of contracting. In summary, after a general overview of inter-firm cooperation and policies in favour of small and medium-sized enterprises, this thesis will give a brief description of the essential elements of the network contract and propose possible solutions for implementation and will critically analyse some of the issues posed by this new form of contractual collaboration.