DISCIPLINA DEL CONTRATTO DI RETE E DISCIPLINA DELL’IMPRESA: UNA COMPLESSA VICENDA ERMENEUTICA

The object of the present paper is the network contract that Italian legislator has ruled in the art. 3, par. 4-ter and following of the d.l. n° 5/2009 (as subsequently modified and integrated). This particular type of contract tries to give a first legal framework to the economic phenomena, well known for many years, of interfirm cooperation and collaboration: where firms are small o medium size, one way to increase competitivity and innovation is to create a net among them. In other states, law doesn’t regulate relations between firms linked in a net with specific rules: are used common contractual forms of agreement that are not specific for a network. Instead, Italian legislator has introduced a specific contractual form which is similar to other, but it is not the same: a contract that has autonomous identity and own peculiarities. The paper begins examining the different laws that in few years was issued one after the others, the last modifying the previous, trying to find out the essential elements of the contract and, especially, to describe its object and its particular cause. Seems to be correct the opinion of that part of the doctrine that recognize in the network agreement an autonomous “type” of contract (differently, other part of the doctrine speak about “trans-typical” contract). We can probably say that it is a multilateral contract with common purpose and associative structure. Many aspects of the network agreement are relevant but our attention goes especially to: the function of the “network program”; the role and the composition of the managing joint body, called “organo comune” (but it isn’t a necessary element); the nature and the function of the mutual fund, called “fondo comune” (but it is another non necessary element); finally, the possibility for the network to get, through a specific contractor’s option, legal personality. So, the first part of the paper is dedicated to reconstruct the “Systematic” for the network contract, the last part of the paper is dedicated to the examination of some problematic aspects: for examples, what happens when one or more firms linked in the net enter a state of crisis or, worst, gets bankrupt; or, if it’s possible, when the net itself gets bankrupt. We distinguish between network with own legal personality or without it: the first case the network itself can go bankrupt regardless the state of crisis of one or more firm linked in the net; in the second case of network without legal personality, it’s not possible to find a subject who can go bankrupt. In both situations we have tried to find out the consequences of the bankruptcy of one or more firms part of the net and, inter alia, if there are residual possibilities to carry out the original network program. Facing the last questions, it’s important to have cleared before the different ways in which network can operate (aspects seen in the previous chapters): network with or without legal personality; network without legal personality, with or without a managing joint body (“organo comune”) and a mutual fund (“fondo comune”); and if the managing joint body is present, how it acts for, and represents, the firms linked in the net (in other words, which is the agency scheme).