Italienische Netzverträge (contratti di rete), Niederlassungsfreiheit und anwendbares Recht

There is an ongoing discussion in academia on how to treat the so-called »network contracts« that involve a cooperation between two or more enterprises who jointly want to perform one or more economic activities to increase their innovative capabilities. The participants of the network know of each other. Often, the counterpart's participation is an underlying motive for each side's own participation. Hence, the legal question arises whether the conclusion of several bilateral but actually interdependent contracts should have an effect removing the legal relationship from the relativity of obligations doctrine. Academic discussion attempts to fit these networks and the potentially arising claims and liabilities into the schemes of either contract or company law. An answer to some of the questions arising out of the network debate was given by the Italian legislature with its creation of the so-called contratto di rete. This is a private agreement between two or more enterprises to jointly perform one or more economic activities to increase their innovative and competitive capabilities. The Italian rules provide only a framework, leaving the parties freedom to customize their cooperation and move the structure of the network between the aforementioned schemes of contract or company law. The network can have an independent organ and it can have separate capital; if both are established, the network can attain the status of soggettività giuridica and enjoy a limitation of liability making it almost a legal person. This article describes and scrutinizes the contratto di rete from the point of view of the European conflict-of-law system. As soon as the network becomes an independent actor on the market, the rules of the German Bundesgerichtshof regarding international company law apply, as influenced by ECJ decisions on the freedom of establishment. Only if this is not the case international contract law and the Rome I Regulation will apply. Here, Art. 4(4) Rome I and the closest connection dominate the determination of the applicable law.