Can U.S. Venture Capital Contracts Be Transplanted into Europe? Systematic Evidence from Germany and Italy - Part I

A vast literature has examined the contractual technology that venture capital (VC) funds and entrepreneurs deploy in the U. S. to devise an agency cost-minimizing structure of their relationship, leading many to conclude that U. S. VC contracts are the best real-world solution to the challenges bedeviling the financing of high-tech innovative startups and a model for VC transactional practice worldwide. Yet, whether VC funds and entrepreneurs can replicate the allocation of cash-flow and control rights resulting from U. S. VC contracts in non-U. S. jurisdictions has long been open to discussion. Research by financial economists and legal scholars has reached diverging conclusions. The existing literature exhibits three limitations, though. First, it has generally investigated at most only how a subset of the individual components of U. S. VC contracts fare under non-U. S. corporate laws. Second, it has typically considered the law on the books as opposed to the law in action. Third, it has relied on a loose definition of what qualifies as an effective substitute. This article examines how U. S. VC contracts perform under the corporate law regimes in force in two important European jurisdictions: Germany and Italy. It does so by taking a new approach to the matter. First, it considers the entire set of arrangements included in U. S. VC contracts rather than a sample. Second, it assesses the legality of those arrangements in the light of the applicable corporate law in action rather than the law on the books. Third, in assessing arrangements that deviate from 426U. S. private ordering solutions due to restrictive corporate law, it focuses on contract functionality rather than contract design. The results of the inquiry are straightforward: German and Italian corporate laws literally crush contracting parties’ ambition to transplant U. S. VC contracts into their own jurisdictions and only allow for alternative arrangements that, if available at all, are costlier and/or less functional.