Spain | Franchising, Theory Of Risk and Guarantees By Franchisee

15. Mai 2026

  • Spanien
  • Vertrieb
  • Rechtsstreitigkeiten

Foreign franchisors entering into franchise agreements in Spain should take careful note of the content of the judgment issued by the Provincial Court of Córdoba on November 20, 2025, and require that the partner(s) and the directors of the franchisee company expressly guarantee and indemnify the payment of any debts arising from the franchise agreement.

Spanish corporate law establishes the principle of liability for the directors of corporations or limited liability companies when the company is subject to dissolution (for example, due to losses that reduce equity to less than 50% of the share capital) and, despite this, they fail to convene a meeting to adopt corrective measures (dissolution or capital increase).

In the case of the aforementioned ruling, the franchisor was unable to collect the debt arising from the franchise agreement from the franchisee due to the latter’s insolvency; so it decided to claim that debt from the company’s administrator based on the provision mentioned above, that is, due to the fact that the franchisee company was facing dissolution due to losses and the administrator had not convened a shareholders’ meeting, as was his obligation, so that the shareholders could decide how to resolve the situation.

The ruling we are discussing from the Court of Appeal of Córdoba upholds the lower court’s decision and dismisses the franchisor’s claim against the sole administrator of the franchisee company, stating that:

With regard to liability for corporate debts under Article 367 of the Capital Companies Act, the court recognised the existence of the corporate debts, the presence of grounds for dissolution, the breach of the legal obligations by the corporate administrator, and his liability, but found that a ground for exoneration from liability existed in accordance with the doctrine of “known risk.” Thus, it was noted that the plaintiff is a franchisor and X. S.L. was the franchisee, and it was evident from the electronic communications that the franchisee was under constant monitoring and the franchisor was aware of the risk involved in the operations, halting the shipment of goods (clothing) as soon as the limits of the guarantees granted were exceeded, meaning the plaintiff voluntarily assumed the risk. For all these reasons, the claim was dismissed.

In conclusion, and in light of the foregoing, the present franchise relationship and its conduct allow us to consider that it has been established that the franchisor (creditor) had greater knowledge of the franchisee’s (debtor’s) financial situation, beyond the information appearing in the annual accounts filed with the Commercial Registry, as it was the franchisee’s primary supplier. And this knowledge and control of the debt by the franchisor (through the increase in orders) justifies the exoneration of the corporate director’s liability for corporate debts under Article 367 of the Capital Companies Act, which leads to the dismissal of the appeal

The legal theory or principle of Known/Accepted Risk, to which the judgment refers, holds that harm caused to a third party, with or without a contractual relationship in place, is not considered unlawful if the victim was aware of the risk and voluntarily assumed it.

This doctrine was initially developed within the framework of tort liability: whoever engages in a risky activity and reaps its benefits must bear its negative consequences, that is, the risk—(cuius commodum, eius incommodum).

However, case law has extended the application of this theory to the field of contractual liability, as demonstrated in the judgment under discussion.

Therefore, since the plaintiff was aware of the defendant’s financial situation and solvency—having “monitored” its activity as a franchisor—and despite this, decided to maintain the contract’s validity, thereby increasing the debt, the ruling holds that the franchisor assumed the risk, which constituted grounds for exonerating the administrator from liability. However, more concerning than the above is that this “known risk” theory could be  considered applicable to the liability of the franchisee company itself, which could be exonerated from liability based on the franchisor’s monitoring of its activities.

The conclusion of all the above is that, based on this application of the known risk theory, franchisors may face difficulties in claiming debts owed by the franchisee company from its directors in the event of the company’s insolvency; therefore, it is highly advisable that, when signing the franchise agreement, a joint and several guarantee for the franchise’s potential future debts be required from its directors and partners, which, moreover, is a fairly standard practice.

In this way, the objection based on the theory of known risk would not come into play.

Vietnam has been added to the EU list of non‑cooperative jurisdictions for tax purposes (Annex I), following the Council’s update of 17 February 2026.

For EU companies buying goods and services from Vietnam, this is not an outright ban on trade, but rather a signal that substantially heightened tax governance scrutiny, documentation expectations, and (in some cases) more demanding payment execution will follow in the months ahead. The EU listing process is designed less to “name and shame” and more to encourage positive change through cooperation and dialogue, but once a jurisdiction is placed on Annex I, EU Member States implement “defensive measures” that can materially affect tax treatment, withholding obligations, and audit intensity for Vietnam-linked transactions.

What the EU decision does (and does not) do

The EU blacklist is a tax‑governance instrument: it does not prohibit EU businesses from importing goods from Vietnam or procuring Vietnamese services, and it does not alter Vietnam’s domestic tax regime, corporate income tax rules, withholding tax framework, or investment policies.

At the same time, the EU can deepen cooperation with Vietnam on the political and economic track while still applying tax‑governance pressure through listing mechanisms, so businesses should be prepared for a “partnership plus scrutiny” environment rather than expecting the two to be perfectly aligned.

In January 2026, the EU and Vietnam upgraded their relations to a Comprehensive Strategic Partnership, framed as a platform to strengthen cooperation across areas such as trade and investment, climate/energy, sustainable development and digital transformation-a signal that the blacklisting is a technical compliance tool, not a diplomatic rupture.

The ideological paradox: a Socialist Republic on a tax-haven list

Vietnam’s presence on the blacklist is striking when viewed in its broader political context. The EU blacklist was conceived after major tax-transparency scandals (the Panama Papers and LuxLeaks) to address jurisdictions that facilitate offshore structures or fail to meet information-exchange standards. In the Western imagination, “tax haven” connotes liberal microstates or offshore centres, yet Vietnam, governed by a Communist Party, now sits on the same list. This reflects the reality of Vietnam’s hybrid economic model: politically socialist, but economically pragmatic since the Đổi Mới reforms of the late 1980s, with selective tax incentives for special economic zones, high-tech investments and priority sectors that, in certain cases, can significantly reduce the effective tax burden for foreign investors. The EU’s concern is not Vietnam’s headline corporate tax rate but rather-at this stage-the absence of adequate exchange-of-information infrastructure, though the architecture of its preferential regimes has also attracted scrutiny in the past. The listing is a technical compliance issue, not an ideological one. 

Why Vietnam was added: the listing criteria and timeline

Vietnam has been subject to EU scrutiny since the very first iteration of the EU list in December 2017, when it was placed in Annex II (the “grey list”) alongside jurisdictions that have committed to reform but are not yet fully compliant. In October 2025, Vietnam was removed from Annex II after fulfilling its commitments on country-by-country reporting (CbCR), and appeared, at that point, to be on the path to full compliance. However, shortly afterwards-in November 2025-the OECD Global Forum published its peer review and rated Vietnam “Non-Compliant” with respect to the standard on Exchange of Information on Request (EOIR), a separate compliance area from CbCR, finding that further reforms remained outstanding and that improvements in the CbCR exchange framework were not expected before 2027. This OECD finding directly triggered the February 2026 move to Annex I-an escalation from the grey list to the blacklist, bypassing any intervening period of full compliance.

The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), requiring compliance with AEOI and EOIR standards and membership of the Multilateral Convention on Mutual Administrative Assistance in Tax Matters; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.

Vietnam’s response and the path to delisting

Vietnam’s Ministry of Foreign Affairs responded publicly within days of the listing, defending the country’s tax transparency record and stating that the government is implementing a national action plan to follow OECD recommendations and expand tax cooperation with partners including the EU. Vietnam expressed readiness to engage with European authorities to ensure more objective and comprehensive assessments, and to promote cooperation for shared development and prosperity. Practitioner commentary suggests a concrete roadmap is achievable: with legislative amendments (decrees and circulars on EOIR procedures), the establishment of a dedicated EOIR unit, publication of enforcement statistics, and active technical engagement with the EU Code of Conduct Group from now through September 2026, Vietnam could realistically target removal from Annex I at the next EU review cycle in October 2026, although this timeline is ambitious and delisting is by no means guaranteed. The key point for EU businesses is that, while the listing may be relatively short-lived if Vietnam acts decisively, companies should not delay compliance preparations in reliance on early delisting-a proportionate, risk-based response is more appropriate than a wholesale restructuring of Vietnam-linked supply chains.

How different payment types are affected in practice

Goods (imports) are often the most straightforward in substance terms because there is usually a clear chain of documents: purchase orders, shipping documents, customs import paperwork, delivery notes, inspection/acceptance records and matching invoices.

The risk uplift for goods is typically not about whether the purchase is real, but whether the overall supply chain and pricing remain coherent under scrutiny-for example, whether margins and intercompany arrangements around the import flow make commercial sense and are consistently documented.

Services (outsourcing, consulting, IT development, marketing, support) tend to attract more questions because “what was delivered” is harder to evidence than a shipped product.

If your EU entity pays a Vietnamese provider for services, expect to need a well‑organised evidence pack: a clear scope of work, time records or milestones, deliverables (reports, code repositories, tickets), acceptance sign‑offs, and a pricing rationale that matches the level of skill and effort involved.

Royalties and IP-related payments (software licences, trademarks, know‑how, technology access) are particularly sensitive because they combine valuation complexity with cross‑border tax characterisation questions.

Expect pressure-testing of (i) who truly owns and controls the IP, (ii) the contract chain and sublicensing rights, (iii) how the royalty rate was set using benchmarking or comparable arrangements, and (iv) whether the payment is genuinely for IP rather than a disguised service fee.

Intragroup charges (management fees, shared services, cost recharges) are commonly the first area where tax authorities and counterparties ask for “benefit” evidence and allocation logic.

Where Vietnam sits inside a group value chain, be ready to show why a charge exists, how it was calculated, how the recipient benefited, plus consistent intercompany agreements and transfer pricing support.

Financing and treasury flows (interest, guarantees, cash pooling, factoring, trade finance) trigger the most intensive technical review because they involve both tax outcomes and financial crime/compliance sensitivities.

Even where the structure is legitimate, these flows are more likely to be escalated internally for enhanced review and may require more supporting documentation before execution.

How European banks may respond (and what that looks like in practice)

Banks in the EU operate under a risk‑based approach to financial crime and compliance, and they may apply de-risking decisions, meaning they can choose to restrict or exit relationships or transaction types they view as exceeding their risk appetite or being operationally too costly to monitor. EU supervisory frameworks acknowledge that de-risking exists and call for proportionate, evidence-based risk assessments rather than indiscriminate blanket exclusions, but in practice banks have significant discretion.

For an EU company initiating a bank transfer to a Vietnamese counterparty, the following discretionary measures can arise in practice, even where the payment is entirely lawful and commercially routine.

A bank can pause execution and request additional documents before releasing funds, seeking comfort on the purpose and legitimacy of the transaction under its internal controls.

Typical requests include the underlying contract or statement of work, invoices, proof of delivery or performance, an explanation of business purpose, and information on the beneficiary’s beneficial ownership or corporate structure.

A bank can route the payment through manual review queues rather than straight-through processing, particularly for first-time beneficiaries, unusually large amounts, or payments with vague narratives that do not clearly describe the purpose.

This creates operational knock-ons: late supplier settlement, goods held pending payment confirmation, or service suspension where the vendor operates on strict payment triggers.

A bank can impose internal conditions as part of its customer-specific risk controls-for example requiring richer payment details, stricter invoice descriptors, or pre-approval workflows for Vietnam-corridor payments.

A bank can decline to process specific transactions or decide to exit certain corridors, client types, or business models entirely as a risk-management choice. German financial institutions are described as applying enhanced due diligence, requiring full transparency of transaction purpose and ownership for Vietnam-linked payments.

Where a payment is declined, the practical solution is often to adjust the execution setup-alternative banking channel, revised documentation pack, or modified payment mechanics-while keeping the underlying commercial relationship intact.

EU companies are advised to develop a “Banking Compliance Pack” for Vietnam-corridor payments: a pre-assembled set of documents (contract, invoice, proof of delivery/performance, business rationale memo, and beneficial ownership information) that can be submitted proactively or in response to bank queries within hours rather than days.

Non-tax defensive measures and EU funding implications

Beyond tax measures, being on the EU blacklist triggers non-tax consequences that affect Vietnam’s economic relationship with the EU more broadly. EU investment programmes cannot channel funding through entities located in Vietnam, because using such an entity contradicts the core legal purpose of these funds, which are designed to promote good governance, transparency, and the fight against illicit financial flows. Affected funds include the European Fund for Sustainable Development (EFSD/NDICI), which de-risks major investments in areas like energy and digital; the InvestEU programme (which replaced the former EFSI); and the External Lending Mandate (ELM), which provides EIB loans for major infrastructure outside the EU. In addition, the General Framework for STS securitisation imposes separate restrictions on the use of entities in blacklisted jurisdictions within securitisation structures. For Vietnamese entities and their EU partners working on donor-funded or ESG-driven projects, this can be a significant constraint, as subsidiaries and other businesses in Vietnam may be cut off from these sources of EU financing.

DAC6 reporting and public country-by-country reporting

Cross-border arrangements involving Vietnam are now subject to heightened DAC6 scrutiny. In particular, Hallmark C.1(b)(ii) may be triggered where a deductible cross-border payment is made by an EU-based associated enterprise to a tax resident in Vietnam, subject to Member State-specific implementation of the main benefit test and other conditions. Large multinationals (consolidated revenue of EUR 750 million or more in each of the last two fiscal years) must also prepare and publicly disclose a Public Country-by-Country Report. Under the EU Public CbCR Directive, Vietnam activities must be reported separately-not aggregated as “Rest of the World”-disclosing a list of all consolidated subsidiaries, description of activities, number of full-time equivalent employees, revenues (including related-party revenue), profit or loss before tax, income tax accrued and paid, and accumulated earnings. For FY 2025 and FY 2026, Vietnam information is already reportable separately by affected multinationals.

Country notes (alphabetical)

Belgium: Belgium applies non-deductibility of costs, CFC rules, and participation exemption limitations linked to both the EU list and certain domestic criteria. A critical Belgian-specific rule is the reporting obligation for payments made to entities in blacklisted jurisdictions where the aggregate of such payments exceeds EUR 100,000 in the taxable period; once this threshold is met, each such payment must be reported in the annual tax return, and any payment that is not reported, or that cannot be justified on specific grounds, is not deductible. Belgium follows a dynamic approach to the EU list, meaning EU list updates take effect automatically without a further domestic step. For Belgian payers, immediate practical priorities are: (i) identifying all Vietnam-linked payment streams above EUR 100,000, (ii) ensuring the reporting mechanism in the annual tax return is in place, and (iii) building the justification file for each reported payment.

France: France applies all four defensive measures-non-deductibility of costs, CFC rules, withholding tax, and participation exemption limitation-but via a national decree-based list that refers to the EU list while also applying additional French domestic criteria. France follows a static approach, updating its domestic non-cooperative state list through an annual Decree in the Official Journal, with tax consequences applying from the first day of the third month following publication. The last French update took place in April 2025, and at the time of writing (May 2026) no subsequent decree incorporating Vietnam has been published. A further update is expected imminently and will likely include Vietnam. Once Vietnam appears on the French list, key measures include: a 75% withholding tax on interest, royalties, dividends and service fees (counterevidence possible); denial of the participation exemption (counterevidence possible for jurisdictions meeting certain criteria); denial of deductibility of interest, royalties and service fees (counterevidence possible); and a stricter CFC rule under which the burden of proof is reversed and foreign withholding taxes cannot be credited against French CFC income. French payers should monitor the next French decree closely and prepare counterevidence files now so they are ready the moment the decree is published.

Germany: Germany applies all four defensive measures through the Tax Haven Defence Act (Steueroasen-Abwehrgesetz, StAbwG), linked to the EU list via a Tax Haven Defence Ordinance that is updated once per year, typically at year-end taking into account the October EU list update. The expected sequence for Vietnam is: December 2026-amendment to the Tax Haven Defence Ordinance to incorporate Vietnam; from 2027 (Year 1)-stricter CFC rules and extended withholding tax of 15% (plus a 5.5% solidarity surcharge) apply to income from financing relationships, insurance or reinsurance services, legal and advisory services, and trading of goods and services; from 2029 (Year 3)-denial of the participation exemption activates; from 2030 (Year 4)-denial of deductible business expenses activates. Importantly, Germany’s extended withholding tax can override double tax treaties. The multi-year ramp-up means that immediate German impacts are CFC scrutiny and withholding tax friction on specific payment types, while the broader expense deduction denial will only bite from 2030 onwards-giving German payers time to prepare, but making early documentation investment worthwhile.

Italy: Italy uses the EU list for monitoring and deductibility purposes under Article 110 TUIR: costs connected with counterparties in Annex I jurisdictions are generally deductible up to “normal value,” while amounts above normal value require evidence of an effective economic interest, and all such costs must be separately indicated in the annual income tax return (Modello REDDITI). Italy’s framework is directly triggered by the EU list, meaning Vietnam’s Annex I status is effective for Italian purposes from the publication of the Council conclusions in the EU Official Journal, without any further domestic implementing step being required.

For Italian payers, service costs, royalties, and intragroup charges to Vietnam are the most sensitive categories: robust documentation of deliverables, pricing and economic rationale is essential, and accounting teams need to ensure they can cleanly isolate Vietnam-linked costs in the year-end reporting workflow.

Malta: Malta follows a dynamic approach to the EU list, meaning Vietnam’s Annex I status takes effect automatically in Malta’s tax framework. Malta applies a limitation of the participation exemption on dividend income derived from a participating holding in a body of persons that has been resident in a jurisdiction on the EU list for a minimum period of three months during the year immediately preceding the year of assessment, subject to a counter-evidence exception based on “people functions.” Malta does not apply non-deductibility, CFC, or withholding tax defensive measures against EU-listed jurisdictions as primary tools, so the main Malta-specific concern for holding and investment structures is participation exemption eligibility and substance evidence. For Malta-based groups, the practical response is to keep board materials, contracts, and commercial rationale tightly aligned, and to prepare for more intensive counterparty due diligence (beneficial ownership, substance, and tax residency) from EU customers and financial institutions.

Netherlands: The Netherlands applies a 25.8% conditional withholding tax on interest, royalties, and (since 1 January 2024) dividends paid to related entities in EU-listed jurisdictions or low-tax jurisdictions, as well as CFC rules with counterevidence possible. The Netherlands follows a static approach: the list applicable for a tax year is based on the EU list as it stood at the end of the preceding year, using the October update as the reference. This means the Dutch 2027 Regulation will include Vietnam only if Vietnam remains on the EU list after the October 2026 review cycle. No withholding tax consequences arise for Dutch payers immediately in 2026 as a direct result of Vietnam’s February 2026 listing, but the October 2026 review date is critical: if Vietnam remains listed, Dutch conditional withholding tax obligations will activate from 1 January 2027. Dutch payers with intragroup dividend, interest, and royalty flows to Vietnam should use the current window to restructure documentation and pricing support and to assess whether existing double tax treaty protections remain effective in light of the conditional WHT mechanics.

Spain: Spain does not mechanically mirror the EU list, but operates its own domestic list of non-cooperative jurisdictions, which is updated separately and can include or exclude jurisdictions differently from Annex I. Spain applies a static approach, with the list specified in law. The practical implication is that the Spanish domestic tax consequences of Vietnam’s listing depend on whether and when Spain updates its domestic list to include Vietnam, rather than arising automatically from the EU Council’s February 2026 decision. For Spain-based procurement and finance teams, do not assume a one-to-one mapping between EU-list status and Spanish domestic tax outcomes, but do treat Vietnam-linked transactions as higher-scrutiny items from an audit and counterparty due diligence perspective, and invest in cleaner contracting, invoice narratives, and performance evidence for services, royalties, and intragroup charges.

 

Practical next steps for EU companies

  1. Map exposures: Identify and quantify all payment streams relating to Vietnamese entities, broken down by payment type (goods, services, royalties, intragroup charges, financing).
  2. Understand your Member State’s rules: Confirm which defensive measures apply in the relevant EU payer jurisdiction, when they take effect (immediately or staged), whether the jurisdiction follows the EU list dynamically or statically, what relief conditions exist, and what documentation is required.
  3. DAC6 readiness: Assess whether Vietnam-linked arrangements trigger DAC6 reporting obligations (particularly deductible cross-border payments between associated enterprises) and ensure reporting infrastructure is in place.
  4. Transfer pricing and substance: Validate intercompany services, royalties and financing arrangements by reassessing pricing, benefit tests and contractual terms; strengthen contemporaneous documentation before year-end.
  5. Public CbCR messaging: If within scope, assess public CbCR disclosure implications for Vietnam operations and align tax, legal, ESG and investor-relations communications accordingly.
  6. Vendor due diligence: Implement or strengthen due diligence on Vietnamese counterparties, including tax residence evidence, beneficial ownership documentation, and substance and economic activity confirmation.
  7. Banking compliance pack: Build a pre-assembled documentation pack for Vietnam-corridor payments (contract, invoice, proof of delivery/performance, business rationale, beneficial ownership information) to address bank queries within hours rather than days.
  8. Monitor the October 2026 review: Track Vietnam’s progress on EOIR reforms and the EU Code of Conduct Group’s October 2026 review cycle. If Vietnam is removed from Annex I in October 2026, Member States that follow a static approach (Germany, Netherlands) will not apply defensive measures to Vietnam in their 2027 rules; France, which also follows a static approach but applies additional domestic criteria, may nonetheless retain Vietnam on its own non-cooperative state list even after EU delisting. The October 2026 outcome is therefore commercially significant for medium-term planning.
  9. Embed internal governance: Install jurisdiction-risk gateways in approval workflows for new entities, contracts, loans, and IP arrangements involving Vietnam, to ensure proper sign-off and documentation from inception.

Under French Law, franchisors and distributors are subject to two kinds of pre-contractual information obligations: each party must spontaneously inform their future partner of any information they know is decisive to their consent. In addition, for certain contracts – i.e a franchise agreement – there is a duty to disclose a limited amount of information in a document. These pre-contractual obligations are mandatory rules of public policy. Thus, these two obligations apply simultaneously to the franchisor, distributor or dealer when negotiating a contract with a partner.

Takeaways

  • The information required by the DIP must be fully completed and updated ;
  • The information not required by the DIP but provided by the franchisor must be carefully selected and sincere;
  • Franchisee must be given the opportunity to request additional information from the franchisor;
  • Franchisee’s experience in the economic sector enables the franchisor to considerably limit its exposure to the risk of contract cancellation due to a defect in the franchisee’s consent;
  • Franchisor must keep the proof of the actual disclosure of pre-contractual information (whether mandatory or not).
  • The general information obligation under common law (Article 1112-1 of the French Civil Code) may apply concurrently with the special disclosure obligation provided for under Article L. 330-3 of the French Commercial Code.

General duty of disclosure for all contractors

What is the scope of this pre-contractual information?

This obligation is imposed on all counterparties, for any kind of contract. Indeed, article 1112-1 of the Civil Code states that:

(§. 1) The party who knows information of decisive importance for the consent of the other party must inform the other party if the latter legitimately ignores this information or trusts its counterparty.

(§. 3) Of decisive importance is the information that is directly and necessarily related to the content of the contract or the quality of the parties. »

This obligation applies to all contracting parties for any type of contract.

French courts have ruled that this general information obligation may apply concurrently with the special disclosure obligation under Article L. 330-3 of the French Commercial Code (see below), answering the question in the affirmative (Paris Court of Appeal, 27 March 2024, no. 22/12665). The scope of the latter has however, been defined by the French Supreme Court (« Cour de cassation ») : only information bearing a direct and necessary link with the subject matter of the contract or the qualities of the parties is subject to the disclosure obligation (Cass. com., 14 May 2025, no. 23-17.948).

Who bears the burden of proof?

The burden of proof rests on the person who claims that the information was due to him. He must then prove (i) that the other party owed him the information but (ii) did not provide it (Article 1112-1 (§. 4) of the Civil Code)

Special duty of disclosure for franchise and distribution agreements

Which contracts are subject to this special rule?

French law requires (art. L.330-3 French Commercial Code) the provision of a pre-contractual information document (in French “DIP”) and the draft contract, by any person:

  • which grants another person the right to use a trade mark, trade name or sign,
  • while requiring an exclusive or quasi-exclusive commitment for the exercise of its activity (e.g. exclusive purchase obligation). The quasi-exclusive nature of the commitment is assessed on a case-by-case basis by French courts, independently of the 80% purchase threshold provided for under EU Regulation 2022/720, which is treated merely as an indicative reference.

Concretely, DIP must be provided, for example, to the franchisee, distributor, dealer or licensee of a brand, by its franchisor, supplier or licensor as soon as the two above conditions are met. French courts have moreover recently had occasion to confirm that the scope of the DIP obligation is not limited to franchise agreements but extends, in particular, to dealership agreements, provided the above-mentioned conditions are met (Paris Court of Appeal, 22 May 2024, no. 22/08672).

When the DIP must be provided?

DIP and draft contract must be provided at least 20 days before signing the contract, and, where applicable, before the payment of the sum required to be paid prior to the signature of the contract (for a reservation).

What information must be disclosed in the DIP?

Article R. 330-1 of the French Commercial Code requires that DIP mentions the following information (non-detailed list) concerning:

  • Franchisor (identity and experience of the managers, career path, etc.);
  • Franchisor’s business (in particular creation date, head office, bank accounts, history of the development of the business, annual accounts, etc.);
  • Operating network (members list with indication of signing date of contracts, establishments list offering the same products/services in the area of the planned activity, number of members having ceased to be part of the network during the year preceding the issue of the DIP with indication of the reasons for leaving, etc.);
  • Trademark licensed (date of registration, ownership and use);
  • General state of the market (about products or services covered by the contract) and local state of the market (about the planned area) and information relating to factors of competition and development perspective. With respect to the local market, the French Supreme Court (« Cour de cassation ») has held that the franchisor is not required to conduct a market study, but that if one is provided, it must be accurate and verifiable (Cass. com., 18 Oct. 2023, no. 22-19.329).;
  • Essential element of the draft contract and at least: its duration, contract renewal conditions, termination and assignment conditions and scope of exclusivities;
  • Financial obligations weighing in on contracting party: nature and amount of the expenses and investments that will have to be incurred before starting operations (up-front entry fee, installation costs, etc.).

Beyond the exhaustiveness of the information required under the aforementioned provision, the DIP is subject to a qualitative standard. All information provided — including information provided spontaneously — must be accurate and truthful to ensure that the prospective network member’s consent is fully informed and free from any defect.

How to prove the disclosure of information?

The burden of proof for the delivery of the DIP rests on the debtor of this obligation: the franchisor (Cass. Com., 7 July 2004, n°02-15.950). The ideal for the franchisor is to have the franchisee sign and date his DIP on the day it is delivered and to keep the proof thereof.

The clause of contract indicating that the franchisee acknowledges having received a complete DIP does not provide proof of the delivery of a complete DIP (Cass. com, 10 January 2018, n° 15-25.287).

The franchisor is subject to a duty to update the DIP until the contract is signed

In a ruling dated 26 June 2024 (no. 23-14.085 PB), the French Supreme Court held that formal compliance of the DIP at the time of its delivery is not sufficient to exonerate the franchisor from all pre-contractual liability. This position was confirmed by a subsequent ruling of 4 December 2024 (no. 23-16.684).

These two decisions appear to establish a duty of ongoing updates incumbent upon the network head throughout the entire period between the delivery of the DIP and the execution of the contract. Where significant events occur during that interval — insolvency proceedings affecting network members, major litigation, or structural changes to the network — the network head is required to proactively inform the prospective member. The court then examines whether the failure to disclose such information was liable to distort the candidate’s assessment of the network and, consequently, to vitiate his consent (Cass. com., 26 June 2024, op. cit.).

A franchisor may therefore not shelter behind the initial regularity of the DIP to discharge its disclosure duty where the network’s situation has materially changed prior to the signing of the contract.

Sanction for breach of pre-contractual information duties

Criminal sanction

Failing to comply with the obligations relating to the DIP, franchisor or supplier can be sentenced to a criminal fine of up to 1,500 euros and up to 3,000 euros in the event of a repeat offence, the fine being multiplied by five for legal entities (article R.330-2 French commercial Code).

Cancellation of the contract for deceit

The contract may be declared null and void in case of breach of either article 1112-1 of the French Code civil or article L. 330-3 of the French Code de commerce. In both cases, failure to comply with the obligation to provide information is sanctioned if the applicant demonstrates that his or her consent has been vitiated by error, deceit or violence. In this respect, courts conduct a concrete, case-by-case assessment, taking into account in particular the professional experience and personal due diligence of the distributor: a sophisticated candidate will face greater difficulty in establishing deceit, and his experience in the relevant sector may be sufficient to exonerate the franchisor (Paris Court of Appeal, div. 5 – ch. 11, 26 Apr. 2024, no. 21/13205), even where the information provided was incomplete or inaccurate (Paris Court of Appeal, 20 Jan. 2021, no. 19/03382).

The path is therefore narrow for the franchisee: he cannot invoke error concerning profitability when it is he who draws up his plan, and even when this plan is drawn up by the franchisor or based on information drawn up and transmitted by the franchisor, the experience of the franchisee who knew the local market may exonerate the franchisor.

Regarding deceit, Courts strictly assess its two conditions which are:

  • (a material element) the existence of a lie or deceptive reticence (article 1137 French Civil Code), and
  • (an intentional element) the intention to deceive his counterparty (article 1130 French Civil Code).

Where applicable, the parties must return to the state they were in before the contract.

Damages

Although the claims for contract cancellation are subject to very strict conditions, it remains that franchisees/distributors may alternatively obtain damages on the basis of tort liability for non-compliance with the pre-contractual information obligation, subject to proof of fault (incomplete or incorrect information), damage (loss of opportunity of not contracting or contracting on more advantageous terms) and the causal link between the two.

From Reporting to Governance and Risk Allocation

Environmental, Social and Governance (ESG) considerations are playing an increasingly influential role in how businesses operate, invest, and manage risk, especially within the European Union, where corporate sustainability and responsibility regulation have been on the agenda in recent years.

With the adoption of the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD), many companies anticipated a significant shift in compliance. Since then, the EU has introduced simplification measures to streamline reporting and due diligence obligations, reduce the administrative burden, and improve proportionality, particularly for small and medium-sized enterprises (SMEs), while maintaining the core sustainability objectives.

While opinions may differ regarding the evolution of environmental, social, and governance (ESG) in EU regulation and the subsequent postponements of reporting obligations, regulatory developments appear to have, in practice, supported a shift in perspective. Sustainability is no longer viewed solely as a reporting requirement, but increasingly as a matter of governance, strategy, and risk allocation. This development is welcome, as the regulatory framework’s underlying objective is to advance the green transition, which in turn requires a change in how companies integrate sustainability into their decision-making and operations.

This focus on sustainability influences businesses of all sizes, including SMEs. Even companies not directly subject to the CSRD or CSDDD anticipate that ESG requirements will be passed down through the supply chain. Many non-reporting SMEs are already embedding sustainability practices, and this trend is likely to continue. In other words, sustainability policies are already affecting companies well before any formal reporting obligations kick in.

Environmental, Social, and Governance in Contract Architecture

One of the key means of implementing environmental, social, and governance obligations and objectives in day-to-day business operations is through commercial contracts and the requirements and commitments embedded in them.

Even where a company itself is not directly subject to extensive reporting or due diligence obligations, corporate sustainability and responsibility expectations flow through the market via contractual relationships. Larger undertakings within the scope of CSRD and, in due course, the CSDDD require contractual assurances, information rights, and cooperation from their business partners, including SMEs operating within their supply chains. As a result, corporate sustainability and responsibility become a question of contractual architecture. Companies must consider not only price mechanisms, liability caps and termination triggers, but also how environmental, social and governance risks and obligations are addressed and allocated between the parties through legally enforceable contractual terms.

Translating Policies into Binding Obligations

A typical starting point is the incorporation of a code of conduct or sustainability policies into commercial contracts, often by reference and through an express obligation on the contracting party to comply with them. From a legal standpoint, this raises important drafting questions. Many codes are drafted as high-level public statements. When such policies are converted into contractual commitments, their wording, scope, and hierarchy relative to the main agreement require careful consideration. The obligations must be sufficiently clear to define the parties’ expectations, coherent with other contractual provisions, and proportionate to the commercial relationship. The obligations must also be capable of practical implementation and effective monitoring in the context of the agreement.

In practical terms, this may mean requiring the supplier to comply with specific labour standards, maintain documented environmental management procedures, report on emissions data, ensure traceability of key raw materials, or allow reasonable access for audits. Clearly defining what is expected, how compliance is demonstrated, and what consequences follow from non-compliance is essential for the clause to function effectively. Otherwise, clauses that appear comprehensive in theory and ambitious in scope may offer limited enforceability in practice, and their impact may remain marginal if compliance cannot be effectively monitored and verified. If policies are not properly translated into binding and operational obligations, the company risks a mismatch between what it promises publicly and what is actually required under its contracts. This may undermine consistency, weaken risk management, and expose the company to reputational and governance risks if its own stated principles cannot be enforced within its supply or distribution chain.

As part of this process, companies must also consider the protection of trade secrets and confidential information. For example, broad audit or data-reporting obligations may raise concerns about sensitive business information. Contractual terms should balance transparency with the need to protect legitimately proprietary data. Clauses such as confidentiality agreements or carve-outs for trade secrets can be used to ensure that sharing ESG-related information does not compromise confidential business information or competitive advantages.

Environmental, Social and Governance Clauses Across Different Contract Types

Besides codes of conduct and sustainability policies, environmental, social and governance-related clauses increasingly take more tailored and transaction-specific forms. In shareholder agreements, sustainability objectives may be reflected in governance structures or even linked to financial outcomes, for example by aligning dividend policies or incentive mechanisms with agreed climate targets. In employment contracts, obligations may extend beyond general compliance and include participation in corporate sustainability training programmes or adherence to internal sustainability guidelines as part of performance expectations.

In supply and manufacturing agreements, environmental, social and governance provisions may address traceability of raw materials, emissions reporting, waste management, energy efficiency standards or the right to replace a supplier if its environmental practices materially conflict with the contracting party’s sustainability commitments. Such contractual mechanisms increasingly affect SMEs operating as suppliers, as ESG expectations pass through the supply chain.

Construction contracts often include detailed requirements regarding material selection, lifecycle impacts, carbon footprint calculations and recycling or waste reduction procedures. For example, in Finland, legislation imposes low-carbon and energy efficiency requirements for new buildings, and a party undertaking a construction project is subject to mandatory reporting obligations relating to construction and demolition waste. These statutory requirements are typically reflected and implemented in the relevant project and construction contracts.

Across these different contract types, the practical significance is consistent. Environmental, social and governance considerations move from the level of general policy into legally enforceable obligations tailored to each specific legal relationship. Contracts function as a mechanism for allocating responsibility, managing compliance risk and aligning commercial incentives with sustainability objectives.

Proportionate Monitoring and Audit Rights

In the contractual implementation and monitoring of environmental, social and governance obligations, audit and information rights play a central role. They are closely linked to effective oversight and form an integral part of a coherent contractual framework. In practice, companies typically seek access to relevant data from their business partners and, where appropriate, establish inspection or audit rights to enable meaningful monitoring and verification, whether conducted directly by the company or, commonly, by an independent expert appointed for that purpose.

However, such arrangements must remain balanced. Overly burdensome provisions may needlessly disrupt day-to-day operations and reduce the willingness to cooperate, particularly for SMEs with limited administrative capacity. By contrast, well-designed mechanisms that balance transparency with confidentiality and operational feasibility are more defensible and more likely to function effectively in practice.

Contractual Remedies

As a general principle, the consequences of a breach are determined by the terms agreed between the parties. In practice, the parties will typically first seek to resolve the matter through discussion and good faith negotiations, allowing the non-compliant party an opportunity to clarify the situation and implement corrective actions within a reasonable timeframe. If negotiations do not lead to a resolution, it may be appropriate to proceed to stronger measures, such as contractual penalties, indemnification obligations, price adjustments, temporary suspension rights or other agreed sanctions, applied in light of the nature and severity of the breach.

The contract should clearly define what constitutes a breach, how it is assessed and what remedies are available in each scenario. Clear and proportionate step-by-step remedy structures enhance legal certainty, reduce the risk of disputes and ensure that material or repeated breaches may trigger more significant consequences, including termination where justified.

Strategic and Voluntary Environmental, Social and Governance Commitments

In the current EU landscape, implementing ESG considerations in commercial contracts is no longer simply a matter of reacting to directives. It is a broader exercise in risk management and corporate governance. Even as the implementation details of the directives may continue to evolve, market expectations, financing conditions and reputational considerations remain key drivers of sustainability integration.

In addition, some companies choose to position themselves as frontrunners in sustainability for strategic and reputational reasons. They may therefore incorporate voluntary environmental, social and governance mechanisms and requirements into their contracts that go beyond, or are not directly derived from, binding directives. By doing so, they signal to investors, customers and other stakeholders that sustainability is treated as a core business priority rather than merely a compliance obligation.

At the same time, it is important to recognise the practical limits of such commitments. Ambitious sustainability requirements may be more challenging for SMEs with limited financial and administrative resources. Meeting extensive reporting, certification or traceability standards can require investments in systems, personnel and external expertise. If contractual expectations are not calibrated to the size and capacity of the counterparty, they may limit the ability of SMEs to participate in certain supply chains. A balanced and proportionate approach helps ensure that sustainability objectives remain achievable and commercially workable across the contractual chain.

Conclusion

For legal practitioners, the central task is not to increase the number of environmental, social and governance clauses as such, but to ensure their quality, coherence and practical relevance. The objective is to design contractual mechanisms that are proportionate, enforceable and aligned with the company’s actual risk profile, industry context and sustainability priorities. Commercial contracts remain one of the most concrete tools for translating sustainability strategy into operational practice. Moreover, every contract lawyer should understand and apply key sustainability principles in their work, ensuring that ESG commitments become integral to legal advice and contract drafting.

The Strait of Hormuz is likely the most strategically important point for the global oil trade. In fact, approximately 20% of the world’s oil and gas passes through this narrow passage between the Gulf of Oman and the Persian Gulf every day.

Following the outbreak of war in the region, the impact on energy markets was almost immediate: oil prices quickly rose above $100 per barrel, and it is unclear how high they may climb in the coming weeks and months. As a result, transportation, production, and procurement costs are rising across industrial supply chains in many sectors.

For many companies engaged in international trade, this phenomenon creates a very real problem. Contracts signed months (or years) earlier—perhaps at a fixed price—must be fulfilled in a completely different economic context.

A manufacturer that sells goods for delivery in six or twelve months may find itself producing and shipping at much higher energy costs, while the price agreed upon with the customer remains unchanged.

This is a situation that recurs cyclically, for various reasons: from the COVID-19 pandemic to the subsequent raw materials crisis, and on to current geopolitical tensions.

When the increase in costs is so sudden and significant, a question inevitably arises: must the contract still be performed under the original terms, or is it possible to suspend or renegotiate the agreement to adapt it to the new circumstances?

The answer depends on several factors: first and foremost, on what the parties have (or have not) provided for in the contract, but also on the law applicable to the relationship and on the interpretation that judges or arbitrators may give to the rules in the event of a dispute.

Force Majeure and Hardship: Two Different Concepts

When extraordinary events occur—such as a war, an energy crisis, or the disruption of a trade route—many operators immediately invoke force majeure. However, in most cases, these situations fall instead under the category of hardship.

It is therefore essential to distinguish between these two situations.

When an Event Constitutes Force Majeure

Force majeure applies to cases where an extraordinary and unforeseeable event makes it impossible to perform the contract.

The characteristics of the grounds for exemption from liability depend on the law applicable to the commercial relationship, but generally require:

  • unpredictability of the event;
  • the event being beyond the affected party’s control;
  • the impossibility of avoiding or overcoming the event through reasonable efforts.

Typical examples include:

  • orders from authorities requiring the suspension of production
  • embargoes or export bans
  • logistical disruptions caused by war

In these situations, performance is not merely more costly: it becomes objectively impossible. The consequence is that the party unable to perform is generally exempt from liability for the duration of the event.

Hardship

The situation is different when performance of the contract remains possible but becomes economically much more burdensome.

The concept of hardship is generally based on four prerequisites:

  1. an event occurring after the conclusion of the contract
  2. unpredictability and extraordinary nature of the event
  3. a substantial alteration of the economic balance of the contract
  4. excessive burden of performance, but not impossibility

A sharp increase in the price of oil, gas, or other raw materials often falls into this category.

Goods can be produced and delivered, but doing so may entail costs far higher than those anticipated when the contract was signed.

The ripple effect along the international supply chain

In global industrial supply chains, the same goods are often the subject of a series of consecutive contracts.

The manufacturer sells to a trader, who sells to a processing company, which resells to an importer in another country, who in turn distributes the product to the end market.

When a hardship event occurs—such as a sharp rise in energy prices—the effect tends to ripple throughout the entire supply chain.

The first party affected by the cost increase will try to pass the increase on to its contractual counterpart, who, in turn, will find themselves in the same situation with the next link in the chain.

The risk is clear: one of the operators in the middle of the chain may face increased upstream costs without being able to pass them on downstream.

This is one of the most common problems in international supply chains.

What happens if there is no clause regarding price fluctuations

In commercial practice, it often happens that parties operate on the basis of orders and order confirmations without a formal written contract, or that a contract exists but contains no provisions regarding price fluctuations or hardship.

In such cases, when costs increase sharply, it is necessary to determine which law applies to individual sales contracts across the supply chain.

This can lead to very different situations:

  • one law may allow for price revision or termination of the contract
  • another law aplicable to a second contract may not provide for equivalent remedies
  • a third contract may contain much more restrictive contractual clauses

The practical result is that an operator in the middle of the chain may face a price increase from their supplier without being able to pass it on to the customer.

A Common Legal Framework: The Vienna Convention on the International Sale of Goods (CISG)

Fortunately, many international sales contracts are governed by the 1980 Vienna Convention on the International Sale of Goods (CISG).

The convention has been ratified by 97 countries, including Italy and most major trading partners, such as the U.S., Canada, China, Germany, France, Spain, etc.

The central provision is Article 79, according to which a party is not liable for non-performance if it proves that the non-performance is due to an impediment:

  • beyond its control
  • unforeseeable at the time of the conclusion of the contract
  • unavoidable or insurmountable

Traditionally, this provision has been applied to cases of force majeure.

In recent years, there has been debate over whether it can also be applied to cases of hardship, but international case law tends to be very cautious.

International case law on Hardship

Court decisions reflect a rather strict approach.

In some cases, even very significant increases in raw material costs have not been considered sufficient to modify or suspend the contract.

The reasoning is simple: those who operate professionally in international trade must take into account a certain degree of market volatility.

Only when the increase in costs exceeds an exceptional and unforeseeable level such as to radically alter the balance of the contract can hardship be invoked.

One of the most frequently cited cases is the Belgian Supreme Court’s decision in the Scafom case, which recognized the right to renegotiate the contract following a 70% increase in the price of steel.

However, such cases are relatively rare.

Generic clauses that serve no purpose

Many contracts contain hardship clauses copied from standard templates (boilerplate).

The problem is that these clauses often:

  • list the effects of hardship
  • but do not define when hardship actually occurs

The result is that, when prices rise, the parties may have very different opinions on what constitutes an “exceptional” increase and whether the event in question was “unforeseeable” or not.

The clause, therefore, does not resolve the issue, but defers it to discussion between the parties and, in the event of a failure to reach an agreement, to the courts or arbitrators.

What criteria can define a hardship situation

To make the clause truly effective, it is useful to establish objective parameters.

Among the most commonly used in international contracts:

  • an increase or decrease in the price of a raw material beyond a certain threshold (±20% or ±30%)
  • an increase in transportation or logistics costs within certain limits;
  • significant fluctuations in the exchange rate beyond a specified range;
  • the introduction of tariffs or trade restrictions

These parameters, linked to tolerance ranges, allow the parties to quickly and unambiguously identify a hardship event.

Remedies in the Event of Hardship

An effective clause should also address how to handle the situation.

The most common solutions are:

  • renegotiation of the contract in good faith
  • apply an automatic price adjustment
  • appointment of an independent third-party expert to determine the new price
  • temporary suspension of the contract
  • right of withdrawal if no agreement is reached

These tools allow the parties to manage the crisis without resorting to litigation.

Audit of existing contracts: what to do now

At this point, the practical question becomes: how should we manage the issue in existing business relationships?

The first step is to conduct an audit of existing contracts with suppliers and customers.

1. Introduce comprehensive contracts in new relationships

If the relationships are governed solely by purchase orders and order confirmations, it is advisable to take this opportunity to draft comprehensive international sales contracts that include:

  • a hardship clause
  • warranty provisions
  • remedies for breach
  • limitations of liability

2. Update existing contracts

If the relationship is already governed by a contract, you should check whether a hardship clause exists.

If not, it may be useful to propose to the other party:

  • a new contract, or
  • a contract addendum dedicated to managing price fluctuations.

This helps prevent future conflicts and provides both parties with an effective tool to manage potential price shocks along the supply chain.

Conclusion

Commodity and energy crises demonstrate how exposed international contracts are to sudden changes in economic conditions. When a contract does not clearly address hardship management, the risk does not disappear; it simply shifts along the supply chain until it settles on the weakest link.

For this reason, companies operating within international supply chains should view the hardship clause as a strategic tool for managing contractual risk. A well-drafted contract does not eliminate market volatility, but it allows the parties to address it with clear rules, reducing uncertainty and preventing disputes.

Executive Summary

The African Continental Free Trade Area (AfCFTA) remains one of the most ambitious integration projects in the world. Yet, several years into its operational phase, it has not (yet) delivered the structural shift many expected. A recent analysis underscores the gap between political momentum and economic reality: implementation remains uneven, the agreement is still used by only a portion of participating states, and non-tariff barriers and infrastructure deficits continue to dominate the cost of doing business across borders.  For Egypt, the opportunity is still real — but it depends less on treaty headlines and more on enabling conditions: trade logistics, customs efficiency, regulatory convergence, and competitive industrial capacity. 

Looking Back: The Promise of a Single African Market

When the AfCFTA was launched, expectations were understandably high. A continent-wide trade framework was supposed to reduce tariffs, facilitate trade in goods and services, and strengthen regional value chains — with the broader goal of moving African economies up the value ladder.

In my 2022 article, I asked whether AfCFTA could become a game changer for Egypt, given Egypt’s industrial base, strategic geography, and the potential to diversify export markets beyond traditional partners. (For background, see the earlier article here”).

The Reality Check: Intra-African Trade Remains Structurally Weak

Several years later, the interim assessment is sobering. As the Frankfurter Allgemeine Zeitung (FAZ) recently put it, AfCFTA is not a “game changer” yet, and only about half of member states currently meet the practical prerequisites to trade under the agreement.

A deeper reason is structural: no other world region trades so little with itself, and while statistics may undercount informal cross-border flows (especially in food), the overall picture remains unchanged.

Trade integration cannot deliver transformative outcomes if production, logistics, and institutions do not support scale.

Implementation Has Been Slow — and Often Symbolic

Operationalisation did not start with full-scale liberalisation. Instead, the AfCFTA began with a pilot approach: the Guided Trade Initiative (GTI) launched in October 2022, initially with eight states, later joined by additional countries, including Nigeria and South Africa by spring 2025.

The GTI created valuable learning effects, but it also underlined a key point: early progress was often presented through symbolic deals, while product coverage and volumes remained limited. FAZ highlights that only selected goods could be traded duty-free and that key sectors remained constrained for a long time due to missing or unresolved technical rules.

A pilot, however, cannot substitute for full operational certainty — the kind businesses need to restructure supply chains and invest.

Tariffs Are Not the Main Barrier — Trade Costs Are

AfCFTA is frequently discussed in terms of tariff liberalisation. Yet, evidence suggests that the largest gains do not come from tariffs but from reducing non-tariff barriers and improving trade infrastructure.

FAZ points to a central reality: tariffs tend to add around 20–30% to intra-African trade costs, whereas non-tariff costs can be far higher — driven by bureaucracy, lack of harmonised standards, inefficient border processes, and transport barriers.

This is the crux: even with reduced tariffs, trade will not expand meaningfully if goods still cannot move cheaply, quickly, and predictably.

Integration Complexity and Distributional Politics

Africa’s integration landscape is shaped by multiple overlapping regional economic communities and trade regimes. This creates legal and administrative complexity — often described as an integration “spaghetti bowl.” FAZ notes the challenge of coordination and the continued fragmentation of rules.

There is also a political economy dimension. Intra-African trade is heavily influenced by a small number of larger economies — and the distribution of benefits matters. FAZ highlights the dominance of major players (notably South Africa) and the concern that tariff liberalisation alone may entrench existing industrial advantages.

Where governments expect asymmetric outcomes, resistance often takes the form of delay, narrow implementation, or persistent non-tariff barriers.

What This Means for Egypt: The Opportunity Is Real — But Conditional

Egypt’s strategic case for AfCFTA participation remains strong: industrial potential, geographic location, and the opportunity to access and shape growing markets. But the experience so far suggests that the treaty text alone does not generate trade flows.

For Egypt’s private sector, the decisive factors are practical:

  • predictable and efficient customs clearance and border procedures,
  • logistics corridors and port efficiency,
  • regulatory convergence (standards, certification, compliance),
  • stable access to trade finance and payments,
  • competitive energy and production conditions for manufacturing and processing.

AfCFTA can support these developments — but it cannot replace them.

The “Game Changer” Pathway: What Must Happen Next

FAZ concludes that AfCFTA will only become truly impactful if it is paired with the fundamentals: major infrastructure investment, stronger production and processing capacity, and a credible industrial policy.

At the same time, Africa faces a classic chicken-and-egg problem: without development there is limited investment appeal; without investment there is limited development.

For Egypt and its partners, a pragmatic strategy would be to:

  1. treat AfCFTA as a platform for real trade-cost reduction, not only tariff debates;
  2. focus on a limited number of scalable corridors and sectors where regional value chains can realistically grow;
  3. strengthen implementation capacity so that preferences become usable for firms — especially SMEs;
  4. enhance legal certainty and dispute resolution reliability for cross-border commerce.

Conclusion

AfCFTA remains a landmark achievement in terms of political commitment. But as of today, it has not yet been the “game changer” many hoped for.

For Egypt, the key question is no longer whether AfCFTA is visionary — it is. The question is whether governments and businesses can translate it into lower real trade costs, higher competitiveness, and bankable cross-border transactions. If those enabling conditions improve, AfCFTA’s promise can still become commercial reality.

After “Liberation Day,” many foreign companies offered discounts to American importers to help them offset the tariffs. A few months later, the US Supreme Court declared the „reciprocal“ tariffs unlawful, but on the same day, President Trump announced new tariffs. In this article, we provide a practical overview of how to handle various scenarios, shifting from a reactive, unstructured approach to deliberate management of price volatility and trade flows caused by the introduction, adjustment, and removal of tariffs.

Tariff Sharing agreements

For a long time, the question has been straightforward: who absorbs the extra customs cost? The exporter? The importer? Both? The question remains important, but today it is incomplete.

The new scenario, in light of the recent ruling by the US Court of Justice on March 20, 2026, is: what happens if that duty is then canceled and refunded? If the cost was shared between the parties, the benefit of the refund must follow a consistent logic. In the absence of a clear agreement on this point, however, there is a risk of economic misalignment that could compromise the commercial relationship.

Let’s imagine an Italian winery that sells its products to a US importer. Following the introduction of reciprocal duties, the parties have decided that the exporter will grant an extraordinary discount of 7.5%, explicitly motivated by the need to share the impact of the duty. The commercial relationship continues, volumes remain stable, and the importer avoids passing on the entire increase to the end customer.

As a result of the Supreme Court ruling (or, in the future, another ruling or administrative decision), the importer obtains a refund of the duties paid during that period.

If no formal agreements have been made on this point and the documentation refers generically to a „commercial discount“ and says nothing about reimbursement, the situation afterward may be difficult to reconstruct and, above all, could lead to commercial tension. As a result, a positive development (the cancellation of the duty and the right to reimbursement) becomes a problematic factor that jeopardizes the relationship.

Is the exporter entitled to a refund of the discounts granted to mitigate the duties?

In the absence of a different agreement between the parties, the right to reimbursement belongs to the party who paid the duty, i.e., in most cases, the importer. Therefore, there is a risk that the importer will enjoy a double benefit (the discount and the duty refund), while the exporter will get nothing.

For this reason, it is essential that the parties do not limit themselves to negotiating prices and discounts, but also establish the consequences of the adoption, modification, or revocation of duties on the contract, including any refunds.

To achieve this, the first step is to accurately classify and document the discounts granted. If only a „commercial discount“ appears in emails, commercial orders, credit notes, and invoices, it will be harder to later argue that this discount was actually an extraordinary, temporary contribution related to the duty. Conversely, if the documentation and contract specify that it is a tariff sharing or tariff mitigation measure, identifying the amounts to be refunded after the fact becomes much simpler.

The goal is to create a clear view of the trend in discounts and payments so that, if needed, financial flows can be adjusted to align with the original terms of the agreement: if the exporter has helped cover a cost that then, in whole or in part, does not end up materializing, they will be eligible for a refund of the contribution paid.

The contract will therefore include, in addition to the Tariff Sharing clause, a Tariff Reimbursement Allocation clause, which states that if the importer receives a refund, credit, or any other economic benefit related to the duty for which the exporter has granted a discount, the importer must return the corresponding portion of the benefit to the exporter in full. or proportionally, depending on how the parties intend to distribute risk and incentive.

Importer’s responsibility to seek reimbursement

It is unclear whether, in the case of US reciprocal duties, importers can simply file an administrative claim to get a refund or if legal action will be required. The latter seems more probable.

Generally, obtaining a duty refund involves action, deadlines, documentation, and coordination with brokers and customs consultants. In most cases, the entity controlling the process is the importer (or someone acting on their behalf).

This raises a sensitive but very real issue: if the importer knows that they will have to invest time and money to obtain a refund, only to then have to share the benefit with the exporter, their incentive to take action may be reduced. To prevent this inertia  the contract should contain an express obligation to take action, set out as a duty of best efforts or commercially reasonable efforts.

For example, the contract should specify that the importer must inquire about the conditions and time limits of the process, keep relevant documentation, regularly inform the exporter about the progress of the initiatives, and not unilaterally waive or reduce the claim if it affects the exporter’s economic rights.

Preventive Agreements on Litigation and Cost Allocation

When reimbursement involves a lawsuit or structured legal action, the obstacles are organizational and financial: who decides if and when to proceed, who selects the lawyers, who pays the costs upfront, how the net recovery is divided, and who has the final say on a settlement. This generally applies to all contracts, not just this case: dispute resolution methods must be addressed and agreed upon before the problem arises.

Otherwise, the dispute resolution process risks becoming a secondary improvised negotiation at the worst time — when the parties are already under pressure from margins, cash flow, and regulatory uncertainty. As a result, it becomes much harder to reach an agreement.

How to handle new tariffs and their potential cancellation

To safeguard against uncertainty, the agreement should be organized into two stages.

  • The first stage regulates the immediate impact of the change in scenario, for example, the introduction of a new tariff or its increase (renegotiation, cost sharing, automatic adjustment : I discussed this in this article).
  • The second stage manages the possible „rollback“ (right to reimbursement, process, allocation criteria).

This approach has a clear benefit: it does not force the parties to discuss every time the tariff regime changes or a decision to cancel tariffs is made. Instead of reacting to market changes, a tool is adopted to manage potential scenarios, which is much more resilient commercially and easier to oversee, as the rules have already been agreed upon.

This allows the impact of duties to be regulated not as an extraordinary variable, to be agreed upon on a one-time basis, but as a structural, adaptable phenomenon that could last a long time.

This is why it is crucial to know how to draft contracts that cover both the current situation and potential changes, including any refunds.

Conclusion: Three practical steps for companies exporting to the US

The first is to agree on the consequences for the contract of the introduction of a new duty, increasing it, or revoking it (renegotiation, cost sharing, automatic price adjustment, right to share the refund).

The second is to clearly document any discount granted to offset a duty. If it remains a generic „commercial discount,“ the right to a refund if reimbursement occurs will be much harder to enforce.

The third step is to determine what happens if the duty is canceled or revoked: the importer’s responsibility to take action to get a refund, manage the administrative process or litigation, how to divide costs, who oversees the activities of consultants and lawyers, and how the recovered funds will be allocated.

How do you approach negotiating a trade agreement with China?

Based on my experience, let’s examine the issues to be addressed and the main questions to ask, taking the negotiation of a trade distribution agreement as a practical example.

Let’s start with the first issue that is important to clarify.

Nice Business Card – But Who Is This Guy?

Business cards, websites, printed or digital brochures, presentations, and any other materials shared in English have no official value in China.

The company name of the counterparty and the first and last names of people representing it or acting on its behalf, written in English, are only fictitious names.

To be certain of the company’s data and the identity of the persons, it is necessary to ask for the information in Chinese, with particular reference to the company’s business license (equivalent to the Companies House or Chamber of Commerce’s excerpt), from which the name, corporate purpose, registered and paid-up share capital, and the name of the legal representative can be inferred.

The data can then be verified by accessing the portal of the State Administration of Industry and Commerce (SAIC) of the province where the Chinese party is based.

This first verification is essential to ensure that you do not waste time or even run into scams (here’s an in-depth article on Legalmondo’s blog).

If You Don’t Own Your Trademark, Someone Else Will – and Charge You for It

Trademark First, Trade Later. China operates on a first-to-file system for trademarks, which means that the first person or company to register a trademark – not necessarily the original creator or most famous user – gains the legal rights to it. This creates a serious risk: if you haven’t registered your trademark in China, someone else might do it before you, and then either use it freely or demand a hefty ransom to give it back. Even high-profile figures like Elon Musk and Michael Jordan have been entangled in costly and protracted disputes with Chinese trademark squatters. In many cases, getting the mark back is highly complicated, and sometimes legally impossible.

To avoid this, register your trademarks early, even before entering the Chinese market. File directly with the China Trademark Office (CTMO) and don’t stop at the English version — consider registering a Chinese character version as well, since that is how your brand will often be known locally.

Once that base is covered, clearly state in your contract that your Chinese partner is not allowed to file a registration of any of your trademarks in China, in Latin or Chinese characters, and that he will use trademarks and IP rights in strict conformance to the contract and your instructions.

For a deeper dive into how to effectively protect your IP rights in China, check out our detailed article on the Legalmondo blog.

Contracts can wait. First, get on the same page

When negotiating with a Chinese partner, it’s often a mistake to begin the conversation by exchanging contract drafts. Instead, focus first on the substance — the relationship’s commercial and technical terms. Using a clear checklist of key discussion points (such as products, pricing, delivery terms, technical standards, after-sales support, exclusivity, duration, payment terms, etc.) helps ensure that both sides are aligned on what really matters. Take detailed notes and keep minutes of the discussions, especially where and when consensus is reached, and make sure those minutes are circulated and expressly agreed upon. Once substantial agreement has been achieved on the main terms, this memo can then be handed over to your lawyer, who will translate the business understanding into clear and coherent contractual language. This approach saves tons of time, as it helps avoid unnecessary back-and-forth on legal language before the core deal is in place.

Think Your NDA Covers You in China? Think Again

Yes, they are—and often underestimated. A well-drafted Non-Disclosure Agreement (NDA) is essential when the parties plan to exchange confidential information, such as technological know-how, commercial strategies, supplier data, or client lists. Especially in the early phases of negotiation or cooperation, before a main contract is signed, an NDA helps protect intellectual and business assets.

However, as with all contracts in China, a generic NDA template copied from other jurisdictions will likely be of limited use. To be truly effective, the NDA must be adapted to the specifics of the Chinese legal environment. This includes ensuring that it is enforceable in China: the NDA should include the proper dispute resolution mechanism (see below on why you should consider applying Chinese law and litigating in China), and it must specify clear, valid, and proportionate penalties for breach. In Chinese practice, stating specific contractual penalties (liquidated damages) is often more effective than vague references to compensation, as courts and arbitrators in China tend to enforce these more reliably if they are reasonable.

While a good NDA is useful, it often falls short in China’s manufacturing and sourcing landscape. This is where the NNN Agreement – standing for Non-Disclosure, Non-Use, and Non-Circumvention – becomes critical. Unlike standard NDAs that primarily focus on confidentiality, an NNN Agreement is designed to address the unique risks of doing business in China. It prevents the recipient from not only disclosing confidential information but also from using it for their benefit or bypassing the disclosing party to work directly with suppliers, clients, or partners. Which, in China, is a very real risk.

This broader scope is vital when dealing with Chinese manufacturers or intermediaries, who may otherwise be tempted to replicate products or contact customers directly or through third parties. As seen with the NDA, also the NNN Agreement must be drafted in Chinese, governed by Chinese law, and enforceable in Chinese courts -otherwise, it may offer little real protection.

Joint venture? Easy, Cowboy

A joint venture is often the first proposal that comes up when negotiating with a potential Chinese partner. It seems appealing: sharing risks and investments, accessing the local market with an ally, leveraging their knowledge and network of contacts. But the reality is often very different from what it appears to be.

A joint venture is a complex, expensive, and rigid corporate structure that requires significant investments of money, time, and human resources, as well as the ability to continuously manage often divergent interests among the partners. The vast majority of Sino-Foreign JVs have gone wrong, or will go wrong. Or very wrong. First and foremost, because the JV is usually managed by the Chinese partner, and exercising effective control over the company’s operations is a very challenging undertaking.

Before going down this road, it is essential to ask yourself a few questions: Is the joint venture really indispensable for developing this business in China? (Spoiler: generally, no). Are there less restrictive and risky alternatives, such as a distribution agreement or a licensing agreement? (Yes, almost always). And above all: how well do we really know our potential partner?

A joint venture should only be considered if it is strictly necessary for the project’s development, after carefully verifying the commercial viability and the reliability of the Chinese partner, and ensuring the ability to maintain effective control over the JV’s operations.

It is better to start with simpler and more flexible forms of collaboration to test the market and the relationship with the other party before committing to such a demanding investment. Otherwise, the mirage of the joint venture risks turning into a nightmare that can be very costly.

Memorandum of Understanding: Where Good Intentions Become Bad Contracts

A Memorandum of Understanding (MoU) is a helpful tool at the early stage of a commercial relationship. It serves as a roadmap for future negotiations, where the parties outline the main principles and intentions that will guide the drafting of the final agreements. When used correctly, an MoU can significantly facilitate negotiations by ensuring that both sides commit to negotiating the agreement in good faith and share a common understanding of key points such as pricing models, territorial scope, exclusivity, milestones, budget, or performance expectations.

However, an MoU must be used for what it is: a preparatory document, not a binding contract. Care must be taken to avoid ambiguity and unintended commitments. The text should clearly specify that the parties remain free to conclude – or not – the final agreements and which clauses are non-binding – such as the commercial framework or indicative timelines – and which provisions are binding, typically confidentiality, exclusivity during the negotiations (if agreed), governing law, and dispute resolution. A poorly drafted MoU, which includes overly precise and complete terms, can be misinterpreted as a final agreement, creating unnecessary legal risk. So yes, MoUs are valuable – but only when used correctly. If you’d like to know more, go deeper by reading this article.

Bad Drafts, Big Headaches, Poor results

Draft agreements used in China are often copied and pasted from incomplete, superficial, poorly organised templates written in bad English, which often do not match the Chinese version of the contract.

Correcting and integrating these drafts is complicated and more time-consuming than starting from a good template, with suboptimal results.

It would be better to propose a consistently constructed text and ask the other party to propose any changes and additions to this draft.

Your Western Contract Template Won’t Work Here

Even if an English-language contract is perfectly valid, there are many reasons why using contract templates built for other countries in the Chinese market is inadvisable.

The first is the fact that Anglo-Saxon-based agreements, such as those for the U.S., refer to a common law system (which is based on judicial decisions and case law precedents) that is very different from that of civil law countries (such as China and Italy), which derives from the Roman legal tradition, based on a codified set of written laws.

It follows that the layout of an agreement on the Anglo-Saxon model is different, much more detailed, and wordy than that of a typical agreement based on a civil law system. Since contract negotiations in China are generally lengthy and complex, working on redundant and complicated text at the outset does not help.

If we stick to the example of a distribution contract, it should be added that it is advisable to apply Chinese law to provide for arbitration based in China (e.g., at CIETAC) or in Hong Kong or Singapore (third countries, where, however, the costs of the procedure increase significantly) as the mode of dispute resolution. So, the contract should be built on a model that conforms to the law that will apply to the relationship.

Home Court Advantage Won’t Help You in China. In fact, quite the opposite

This is a typical point of disagreement in the negotiation of an international contract: the parties aim to have the law of their own country apply, and to stipulate that any disputes be adjudicated by their domestic courts.

In our case, insisting on the application of Italian (or any other foreign) law and state court is not a good idea: it should be considered, in fact, that a distribution agreement is carried out, for the vast majority, in the country where the distributor operates and where the products are sold (in our case, in mainland China).

In disputes, the parties‘ (particularly the manufacturer’s) interest is to obtain a quick decision by the adjudicating body, especially if situations requiring immediate protection (such as unfair conduct or counterfeiting of trademarks and patents by the distributor) are ongoing.

None of this is possible if one goes to an Italian judge (with lengthy litigation time and the need then for a complex and costly process to recognise and enforce the decision in China); on the contrary,  an arbitration in China, applying Chinese law, allows one to reach a decision quickly (on average 6-9 months) and, if necessary, also to obtain urgent measures to stop any unfair conduct.

Chinese Law Isn’t a Black Box (If You Know What You’re Doing)

The lawyer assisting you should know it.

Therefore, it is not a leap in the dark, and one should not fear surprises.

In addition, it should be remembered that an agreement is primarily based on the covenants that the parties have written in the contract; therefore, if the contract has been well drafted, the rules to be applied are clear.

Finally, if we consider distribution agreements, keep in mind that they are a framework contract, within which a series of separate product sales contracts are concluded. If both countries are contracting parties to the 1980 Vienna Convention on the International Sale of Goods (CISG), then the uniform, clear, and balanced rules of the convention apply automatically, just don’t opt out!

One Contract, Two Languages

The contract is also valid in English only.  However, it is undoubtedly advisable to draft a Chinese version with facing text.

This is for several reasons: first, it prevents the Chinese party from having to arrange for a translation of the text during negotiations for its own internal use (top managers often do not speak English), thus slowing down the various steps of negotiations.

Also, to ensure that the Chinese side fully understands the agreement’s content and to avert misunderstandings (real or instrumental) about the interpretation of certain covenants.

Finally, it should be borne in mind that if the contract were later to be used before a court or administrative authority in China, the only language admitted would be Chinese; for this reason, it is better to have already a text agreed and signed by the parties in Chinese as well, rather than having to prepare a unilateral translation later.

Sign. And chop

Does the contract need to bear the company’s official stamp? Yes, and this point is absolutely crucial. In China, a company’s official „chop“ (the red-ink stamp) is equivalent to a signature and is conclusive proof that the person signing the contract has the authority to represent the company. A signature alone, even from someone with an important-sounding title, may not be sufficient if it is not accompanied by the official chop. Without it, the contract might later be challenged or even considered void. Before signing, always verify that the stamp used matches the one registered with the company’s business license or official corporate records, and ensure that the stamp is applied on every page or at least on the signature page, in line with local practice.

Don’t Let Your Contract Collect Dust

Things change fast, especially in China. New products are added, market conditions evolve, people leave the company, new competitors emerge on the horizon, and so on. Companies constantly adapt to the new conditions, and so must the contract.

Any change in the relationship should be formalized correctly. To avoid misunderstandings and disputes, it’s advisable to include an integration clause in the contract, specifying that any amendments or additions will only be valid if agreed in writing, signed by the parties’ authorized representatives, and annexed as an addendum to the original agreement.

It’s not enough to include this clause – you must follow it consistently. If things change, agreements reached verbally, through Wechat messages, and through email exchanges may make things complicated if they are not formalised adequately according to the procedure set out in the original contract.

If you’d like to go deeper, check out this article.

Javier Gaspar

Rechtsgebiete

  • Schiedsgerichtsbarkeit
  • Vertrieb
  • Franchising
  • Rechtsstreitigkeiten
  • Sport
Kontakt Javier

Schreiben Sie an Javier





    Legalmondos Datenschutzbestimmungen lesen.
    This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

    Vietnam on the EU Tax Blacklist: A Guide for EU Buyers

    12. Mai 2026

    • Vietnam
    • Unternehmen
    • Vertrieb
    • Steuer

    Foreign franchisors entering into franchise agreements in Spain should take careful note of the content of the judgment issued by the Provincial Court of Córdoba on November 20, 2025, and require that the partner(s) and the directors of the franchisee company expressly guarantee and indemnify the payment of any debts arising from the franchise agreement.

    Spanish corporate law establishes the principle of liability for the directors of corporations or limited liability companies when the company is subject to dissolution (for example, due to losses that reduce equity to less than 50% of the share capital) and, despite this, they fail to convene a meeting to adopt corrective measures (dissolution or capital increase).

    In the case of the aforementioned ruling, the franchisor was unable to collect the debt arising from the franchise agreement from the franchisee due to the latter’s insolvency; so it decided to claim that debt from the company’s administrator based on the provision mentioned above, that is, due to the fact that the franchisee company was facing dissolution due to losses and the administrator had not convened a shareholders’ meeting, as was his obligation, so that the shareholders could decide how to resolve the situation.

    The ruling we are discussing from the Court of Appeal of Córdoba upholds the lower court’s decision and dismisses the franchisor’s claim against the sole administrator of the franchisee company, stating that:

    With regard to liability for corporate debts under Article 367 of the Capital Companies Act, the court recognised the existence of the corporate debts, the presence of grounds for dissolution, the breach of the legal obligations by the corporate administrator, and his liability, but found that a ground for exoneration from liability existed in accordance with the doctrine of “known risk.” Thus, it was noted that the plaintiff is a franchisor and X. S.L. was the franchisee, and it was evident from the electronic communications that the franchisee was under constant monitoring and the franchisor was aware of the risk involved in the operations, halting the shipment of goods (clothing) as soon as the limits of the guarantees granted were exceeded, meaning the plaintiff voluntarily assumed the risk. For all these reasons, the claim was dismissed.

    In conclusion, and in light of the foregoing, the present franchise relationship and its conduct allow us to consider that it has been established that the franchisor (creditor) had greater knowledge of the franchisee’s (debtor’s) financial situation, beyond the information appearing in the annual accounts filed with the Commercial Registry, as it was the franchisee’s primary supplier. And this knowledge and control of the debt by the franchisor (through the increase in orders) justifies the exoneration of the corporate director’s liability for corporate debts under Article 367 of the Capital Companies Act, which leads to the dismissal of the appeal

    The legal theory or principle of Known/Accepted Risk, to which the judgment refers, holds that harm caused to a third party, with or without a contractual relationship in place, is not considered unlawful if the victim was aware of the risk and voluntarily assumed it.

    This doctrine was initially developed within the framework of tort liability: whoever engages in a risky activity and reaps its benefits must bear its negative consequences, that is, the risk—(cuius commodum, eius incommodum).

    However, case law has extended the application of this theory to the field of contractual liability, as demonstrated in the judgment under discussion.

    Therefore, since the plaintiff was aware of the defendant’s financial situation and solvency—having “monitored” its activity as a franchisor—and despite this, decided to maintain the contract’s validity, thereby increasing the debt, the ruling holds that the franchisor assumed the risk, which constituted grounds for exonerating the administrator from liability. However, more concerning than the above is that this “known risk” theory could be  considered applicable to the liability of the franchisee company itself, which could be exonerated from liability based on the franchisor’s monitoring of its activities.

    The conclusion of all the above is that, based on this application of the known risk theory, franchisors may face difficulties in claiming debts owed by the franchisee company from its directors in the event of the company’s insolvency; therefore, it is highly advisable that, when signing the franchise agreement, a joint and several guarantee for the franchise’s potential future debts be required from its directors and partners, which, moreover, is a fairly standard practice.

    In this way, the objection based on the theory of known risk would not come into play.

    Vietnam has been added to the EU list of non‑cooperative jurisdictions for tax purposes (Annex I), following the Council’s update of 17 February 2026.

    For EU companies buying goods and services from Vietnam, this is not an outright ban on trade, but rather a signal that substantially heightened tax governance scrutiny, documentation expectations, and (in some cases) more demanding payment execution will follow in the months ahead. The EU listing process is designed less to “name and shame” and more to encourage positive change through cooperation and dialogue, but once a jurisdiction is placed on Annex I, EU Member States implement “defensive measures” that can materially affect tax treatment, withholding obligations, and audit intensity for Vietnam-linked transactions.

    What the EU decision does (and does not) do

    The EU blacklist is a tax‑governance instrument: it does not prohibit EU businesses from importing goods from Vietnam or procuring Vietnamese services, and it does not alter Vietnam’s domestic tax regime, corporate income tax rules, withholding tax framework, or investment policies.

    At the same time, the EU can deepen cooperation with Vietnam on the political and economic track while still applying tax‑governance pressure through listing mechanisms, so businesses should be prepared for a “partnership plus scrutiny” environment rather than expecting the two to be perfectly aligned.

    In January 2026, the EU and Vietnam upgraded their relations to a Comprehensive Strategic Partnership, framed as a platform to strengthen cooperation across areas such as trade and investment, climate/energy, sustainable development and digital transformation-a signal that the blacklisting is a technical compliance tool, not a diplomatic rupture.

    The ideological paradox: a Socialist Republic on a tax-haven list

    Vietnam’s presence on the blacklist is striking when viewed in its broader political context. The EU blacklist was conceived after major tax-transparency scandals (the Panama Papers and LuxLeaks) to address jurisdictions that facilitate offshore structures or fail to meet information-exchange standards. In the Western imagination, “tax haven” connotes liberal microstates or offshore centres, yet Vietnam, governed by a Communist Party, now sits on the same list. This reflects the reality of Vietnam’s hybrid economic model: politically socialist, but economically pragmatic since the Đổi Mới reforms of the late 1980s, with selective tax incentives for special economic zones, high-tech investments and priority sectors that, in certain cases, can significantly reduce the effective tax burden for foreign investors. The EU’s concern is not Vietnam’s headline corporate tax rate but rather-at this stage-the absence of adequate exchange-of-information infrastructure, though the architecture of its preferential regimes has also attracted scrutiny in the past. The listing is a technical compliance issue, not an ideological one. 

    Why Vietnam was added: the listing criteria and timeline

    Vietnam has been subject to EU scrutiny since the very first iteration of the EU list in December 2017, when it was placed in Annex II (the “grey list”) alongside jurisdictions that have committed to reform but are not yet fully compliant. In October 2025, Vietnam was removed from Annex II after fulfilling its commitments on country-by-country reporting (CbCR), and appeared, at that point, to be on the path to full compliance. However, shortly afterwards-in November 2025-the OECD Global Forum published its peer review and rated Vietnam “Non-Compliant” with respect to the standard on Exchange of Information on Request (EOIR), a separate compliance area from CbCR, finding that further reforms remained outstanding and that improvements in the CbCR exchange framework were not expected before 2027. This OECD finding directly triggered the February 2026 move to Annex I-an escalation from the grey list to the blacklist, bypassing any intervening period of full compliance.

    The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), requiring compliance with AEOI and EOIR standards and membership of the Multilateral Convention on Mutual Administrative Assistance in Tax Matters; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.

    Vietnam’s response and the path to delisting

    Vietnam’s Ministry of Foreign Affairs responded publicly within days of the listing, defending the country’s tax transparency record and stating that the government is implementing a national action plan to follow OECD recommendations and expand tax cooperation with partners including the EU. Vietnam expressed readiness to engage with European authorities to ensure more objective and comprehensive assessments, and to promote cooperation for shared development and prosperity. Practitioner commentary suggests a concrete roadmap is achievable: with legislative amendments (decrees and circulars on EOIR procedures), the establishment of a dedicated EOIR unit, publication of enforcement statistics, and active technical engagement with the EU Code of Conduct Group from now through September 2026, Vietnam could realistically target removal from Annex I at the next EU review cycle in October 2026, although this timeline is ambitious and delisting is by no means guaranteed. The key point for EU businesses is that, while the listing may be relatively short-lived if Vietnam acts decisively, companies should not delay compliance preparations in reliance on early delisting-a proportionate, risk-based response is more appropriate than a wholesale restructuring of Vietnam-linked supply chains.

    How different payment types are affected in practice

    Goods (imports) are often the most straightforward in substance terms because there is usually a clear chain of documents: purchase orders, shipping documents, customs import paperwork, delivery notes, inspection/acceptance records and matching invoices.

    The risk uplift for goods is typically not about whether the purchase is real, but whether the overall supply chain and pricing remain coherent under scrutiny-for example, whether margins and intercompany arrangements around the import flow make commercial sense and are consistently documented.

    Services (outsourcing, consulting, IT development, marketing, support) tend to attract more questions because “what was delivered” is harder to evidence than a shipped product.

    If your EU entity pays a Vietnamese provider for services, expect to need a well‑organised evidence pack: a clear scope of work, time records or milestones, deliverables (reports, code repositories, tickets), acceptance sign‑offs, and a pricing rationale that matches the level of skill and effort involved.

    Royalties and IP-related payments (software licences, trademarks, know‑how, technology access) are particularly sensitive because they combine valuation complexity with cross‑border tax characterisation questions.

    Expect pressure-testing of (i) who truly owns and controls the IP, (ii) the contract chain and sublicensing rights, (iii) how the royalty rate was set using benchmarking or comparable arrangements, and (iv) whether the payment is genuinely for IP rather than a disguised service fee.

    Intragroup charges (management fees, shared services, cost recharges) are commonly the first area where tax authorities and counterparties ask for “benefit” evidence and allocation logic.

    Where Vietnam sits inside a group value chain, be ready to show why a charge exists, how it was calculated, how the recipient benefited, plus consistent intercompany agreements and transfer pricing support.

    Financing and treasury flows (interest, guarantees, cash pooling, factoring, trade finance) trigger the most intensive technical review because they involve both tax outcomes and financial crime/compliance sensitivities.

    Even where the structure is legitimate, these flows are more likely to be escalated internally for enhanced review and may require more supporting documentation before execution.

    How European banks may respond (and what that looks like in practice)

    Banks in the EU operate under a risk‑based approach to financial crime and compliance, and they may apply de-risking decisions, meaning they can choose to restrict or exit relationships or transaction types they view as exceeding their risk appetite or being operationally too costly to monitor. EU supervisory frameworks acknowledge that de-risking exists and call for proportionate, evidence-based risk assessments rather than indiscriminate blanket exclusions, but in practice banks have significant discretion.

    For an EU company initiating a bank transfer to a Vietnamese counterparty, the following discretionary measures can arise in practice, even where the payment is entirely lawful and commercially routine.

    A bank can pause execution and request additional documents before releasing funds, seeking comfort on the purpose and legitimacy of the transaction under its internal controls.

    Typical requests include the underlying contract or statement of work, invoices, proof of delivery or performance, an explanation of business purpose, and information on the beneficiary’s beneficial ownership or corporate structure.

    A bank can route the payment through manual review queues rather than straight-through processing, particularly for first-time beneficiaries, unusually large amounts, or payments with vague narratives that do not clearly describe the purpose.

    This creates operational knock-ons: late supplier settlement, goods held pending payment confirmation, or service suspension where the vendor operates on strict payment triggers.

    A bank can impose internal conditions as part of its customer-specific risk controls-for example requiring richer payment details, stricter invoice descriptors, or pre-approval workflows for Vietnam-corridor payments.

    A bank can decline to process specific transactions or decide to exit certain corridors, client types, or business models entirely as a risk-management choice. German financial institutions are described as applying enhanced due diligence, requiring full transparency of transaction purpose and ownership for Vietnam-linked payments.

    Where a payment is declined, the practical solution is often to adjust the execution setup-alternative banking channel, revised documentation pack, or modified payment mechanics-while keeping the underlying commercial relationship intact.

    EU companies are advised to develop a “Banking Compliance Pack” for Vietnam-corridor payments: a pre-assembled set of documents (contract, invoice, proof of delivery/performance, business rationale memo, and beneficial ownership information) that can be submitted proactively or in response to bank queries within hours rather than days.

    Non-tax defensive measures and EU funding implications

    Beyond tax measures, being on the EU blacklist triggers non-tax consequences that affect Vietnam’s economic relationship with the EU more broadly. EU investment programmes cannot channel funding through entities located in Vietnam, because using such an entity contradicts the core legal purpose of these funds, which are designed to promote good governance, transparency, and the fight against illicit financial flows. Affected funds include the European Fund for Sustainable Development (EFSD/NDICI), which de-risks major investments in areas like energy and digital; the InvestEU programme (which replaced the former EFSI); and the External Lending Mandate (ELM), which provides EIB loans for major infrastructure outside the EU. In addition, the General Framework for STS securitisation imposes separate restrictions on the use of entities in blacklisted jurisdictions within securitisation structures. For Vietnamese entities and their EU partners working on donor-funded or ESG-driven projects, this can be a significant constraint, as subsidiaries and other businesses in Vietnam may be cut off from these sources of EU financing.

    DAC6 reporting and public country-by-country reporting

    Cross-border arrangements involving Vietnam are now subject to heightened DAC6 scrutiny. In particular, Hallmark C.1(b)(ii) may be triggered where a deductible cross-border payment is made by an EU-based associated enterprise to a tax resident in Vietnam, subject to Member State-specific implementation of the main benefit test and other conditions. Large multinationals (consolidated revenue of EUR 750 million or more in each of the last two fiscal years) must also prepare and publicly disclose a Public Country-by-Country Report. Under the EU Public CbCR Directive, Vietnam activities must be reported separately-not aggregated as “Rest of the World”-disclosing a list of all consolidated subsidiaries, description of activities, number of full-time equivalent employees, revenues (including related-party revenue), profit or loss before tax, income tax accrued and paid, and accumulated earnings. For FY 2025 and FY 2026, Vietnam information is already reportable separately by affected multinationals.

    Country notes (alphabetical)

    Belgium: Belgium applies non-deductibility of costs, CFC rules, and participation exemption limitations linked to both the EU list and certain domestic criteria. A critical Belgian-specific rule is the reporting obligation for payments made to entities in blacklisted jurisdictions where the aggregate of such payments exceeds EUR 100,000 in the taxable period; once this threshold is met, each such payment must be reported in the annual tax return, and any payment that is not reported, or that cannot be justified on specific grounds, is not deductible. Belgium follows a dynamic approach to the EU list, meaning EU list updates take effect automatically without a further domestic step. For Belgian payers, immediate practical priorities are: (i) identifying all Vietnam-linked payment streams above EUR 100,000, (ii) ensuring the reporting mechanism in the annual tax return is in place, and (iii) building the justification file for each reported payment.

    France: France applies all four defensive measures-non-deductibility of costs, CFC rules, withholding tax, and participation exemption limitation-but via a national decree-based list that refers to the EU list while also applying additional French domestic criteria. France follows a static approach, updating its domestic non-cooperative state list through an annual Decree in the Official Journal, with tax consequences applying from the first day of the third month following publication. The last French update took place in April 2025, and at the time of writing (May 2026) no subsequent decree incorporating Vietnam has been published. A further update is expected imminently and will likely include Vietnam. Once Vietnam appears on the French list, key measures include: a 75% withholding tax on interest, royalties, dividends and service fees (counterevidence possible); denial of the participation exemption (counterevidence possible for jurisdictions meeting certain criteria); denial of deductibility of interest, royalties and service fees (counterevidence possible); and a stricter CFC rule under which the burden of proof is reversed and foreign withholding taxes cannot be credited against French CFC income. French payers should monitor the next French decree closely and prepare counterevidence files now so they are ready the moment the decree is published.

    Germany: Germany applies all four defensive measures through the Tax Haven Defence Act (Steueroasen-Abwehrgesetz, StAbwG), linked to the EU list via a Tax Haven Defence Ordinance that is updated once per year, typically at year-end taking into account the October EU list update. The expected sequence for Vietnam is: December 2026-amendment to the Tax Haven Defence Ordinance to incorporate Vietnam; from 2027 (Year 1)-stricter CFC rules and extended withholding tax of 15% (plus a 5.5% solidarity surcharge) apply to income from financing relationships, insurance or reinsurance services, legal and advisory services, and trading of goods and services; from 2029 (Year 3)-denial of the participation exemption activates; from 2030 (Year 4)-denial of deductible business expenses activates. Importantly, Germany’s extended withholding tax can override double tax treaties. The multi-year ramp-up means that immediate German impacts are CFC scrutiny and withholding tax friction on specific payment types, while the broader expense deduction denial will only bite from 2030 onwards-giving German payers time to prepare, but making early documentation investment worthwhile.

    Italy: Italy uses the EU list for monitoring and deductibility purposes under Article 110 TUIR: costs connected with counterparties in Annex I jurisdictions are generally deductible up to “normal value,” while amounts above normal value require evidence of an effective economic interest, and all such costs must be separately indicated in the annual income tax return (Modello REDDITI). Italy’s framework is directly triggered by the EU list, meaning Vietnam’s Annex I status is effective for Italian purposes from the publication of the Council conclusions in the EU Official Journal, without any further domestic implementing step being required.

    For Italian payers, service costs, royalties, and intragroup charges to Vietnam are the most sensitive categories: robust documentation of deliverables, pricing and economic rationale is essential, and accounting teams need to ensure they can cleanly isolate Vietnam-linked costs in the year-end reporting workflow.

    Malta: Malta follows a dynamic approach to the EU list, meaning Vietnam’s Annex I status takes effect automatically in Malta’s tax framework. Malta applies a limitation of the participation exemption on dividend income derived from a participating holding in a body of persons that has been resident in a jurisdiction on the EU list for a minimum period of three months during the year immediately preceding the year of assessment, subject to a counter-evidence exception based on “people functions.” Malta does not apply non-deductibility, CFC, or withholding tax defensive measures against EU-listed jurisdictions as primary tools, so the main Malta-specific concern for holding and investment structures is participation exemption eligibility and substance evidence. For Malta-based groups, the practical response is to keep board materials, contracts, and commercial rationale tightly aligned, and to prepare for more intensive counterparty due diligence (beneficial ownership, substance, and tax residency) from EU customers and financial institutions.

    Netherlands: The Netherlands applies a 25.8% conditional withholding tax on interest, royalties, and (since 1 January 2024) dividends paid to related entities in EU-listed jurisdictions or low-tax jurisdictions, as well as CFC rules with counterevidence possible. The Netherlands follows a static approach: the list applicable for a tax year is based on the EU list as it stood at the end of the preceding year, using the October update as the reference. This means the Dutch 2027 Regulation will include Vietnam only if Vietnam remains on the EU list after the October 2026 review cycle. No withholding tax consequences arise for Dutch payers immediately in 2026 as a direct result of Vietnam’s February 2026 listing, but the October 2026 review date is critical: if Vietnam remains listed, Dutch conditional withholding tax obligations will activate from 1 January 2027. Dutch payers with intragroup dividend, interest, and royalty flows to Vietnam should use the current window to restructure documentation and pricing support and to assess whether existing double tax treaty protections remain effective in light of the conditional WHT mechanics.

    Spain: Spain does not mechanically mirror the EU list, but operates its own domestic list of non-cooperative jurisdictions, which is updated separately and can include or exclude jurisdictions differently from Annex I. Spain applies a static approach, with the list specified in law. The practical implication is that the Spanish domestic tax consequences of Vietnam’s listing depend on whether and when Spain updates its domestic list to include Vietnam, rather than arising automatically from the EU Council’s February 2026 decision. For Spain-based procurement and finance teams, do not assume a one-to-one mapping between EU-list status and Spanish domestic tax outcomes, but do treat Vietnam-linked transactions as higher-scrutiny items from an audit and counterparty due diligence perspective, and invest in cleaner contracting, invoice narratives, and performance evidence for services, royalties, and intragroup charges.

     

    Practical next steps for EU companies

    1. Map exposures: Identify and quantify all payment streams relating to Vietnamese entities, broken down by payment type (goods, services, royalties, intragroup charges, financing).
    2. Understand your Member State’s rules: Confirm which defensive measures apply in the relevant EU payer jurisdiction, when they take effect (immediately or staged), whether the jurisdiction follows the EU list dynamically or statically, what relief conditions exist, and what documentation is required.
    3. DAC6 readiness: Assess whether Vietnam-linked arrangements trigger DAC6 reporting obligations (particularly deductible cross-border payments between associated enterprises) and ensure reporting infrastructure is in place.
    4. Transfer pricing and substance: Validate intercompany services, royalties and financing arrangements by reassessing pricing, benefit tests and contractual terms; strengthen contemporaneous documentation before year-end.
    5. Public CbCR messaging: If within scope, assess public CbCR disclosure implications for Vietnam operations and align tax, legal, ESG and investor-relations communications accordingly.
    6. Vendor due diligence: Implement or strengthen due diligence on Vietnamese counterparties, including tax residence evidence, beneficial ownership documentation, and substance and economic activity confirmation.
    7. Banking compliance pack: Build a pre-assembled documentation pack for Vietnam-corridor payments (contract, invoice, proof of delivery/performance, business rationale, beneficial ownership information) to address bank queries within hours rather than days.
    8. Monitor the October 2026 review: Track Vietnam’s progress on EOIR reforms and the EU Code of Conduct Group’s October 2026 review cycle. If Vietnam is removed from Annex I in October 2026, Member States that follow a static approach (Germany, Netherlands) will not apply defensive measures to Vietnam in their 2027 rules; France, which also follows a static approach but applies additional domestic criteria, may nonetheless retain Vietnam on its own non-cooperative state list even after EU delisting. The October 2026 outcome is therefore commercially significant for medium-term planning.
    9. Embed internal governance: Install jurisdiction-risk gateways in approval workflows for new entities, contracts, loans, and IP arrangements involving Vietnam, to ensure proper sign-off and documentation from inception.

    Under French Law, franchisors and distributors are subject to two kinds of pre-contractual information obligations: each party must spontaneously inform their future partner of any information they know is decisive to their consent. In addition, for certain contracts – i.e a franchise agreement – there is a duty to disclose a limited amount of information in a document. These pre-contractual obligations are mandatory rules of public policy. Thus, these two obligations apply simultaneously to the franchisor, distributor or dealer when negotiating a contract with a partner.

    Takeaways

    • The information required by the DIP must be fully completed and updated ;
    • The information not required by the DIP but provided by the franchisor must be carefully selected and sincere;
    • Franchisee must be given the opportunity to request additional information from the franchisor;
    • Franchisee’s experience in the economic sector enables the franchisor to considerably limit its exposure to the risk of contract cancellation due to a defect in the franchisee’s consent;
    • Franchisor must keep the proof of the actual disclosure of pre-contractual information (whether mandatory or not).
    • The general information obligation under common law (Article 1112-1 of the French Civil Code) may apply concurrently with the special disclosure obligation provided for under Article L. 330-3 of the French Commercial Code.

    General duty of disclosure for all contractors

    What is the scope of this pre-contractual information?

    This obligation is imposed on all counterparties, for any kind of contract. Indeed, article 1112-1 of the Civil Code states that:

    (§. 1) The party who knows information of decisive importance for the consent of the other party must inform the other party if the latter legitimately ignores this information or trusts its counterparty.

    (§. 3) Of decisive importance is the information that is directly and necessarily related to the content of the contract or the quality of the parties. »

    This obligation applies to all contracting parties for any type of contract.

    French courts have ruled that this general information obligation may apply concurrently with the special disclosure obligation under Article L. 330-3 of the French Commercial Code (see below), answering the question in the affirmative (Paris Court of Appeal, 27 March 2024, no. 22/12665). The scope of the latter has however, been defined by the French Supreme Court (« Cour de cassation ») : only information bearing a direct and necessary link with the subject matter of the contract or the qualities of the parties is subject to the disclosure obligation (Cass. com., 14 May 2025, no. 23-17.948).

    Who bears the burden of proof?

    The burden of proof rests on the person who claims that the information was due to him. He must then prove (i) that the other party owed him the information but (ii) did not provide it (Article 1112-1 (§. 4) of the Civil Code)

    Special duty of disclosure for franchise and distribution agreements

    Which contracts are subject to this special rule?

    French law requires (art. L.330-3 French Commercial Code) the provision of a pre-contractual information document (in French “DIP”) and the draft contract, by any person:

    • which grants another person the right to use a trade mark, trade name or sign,
    • while requiring an exclusive or quasi-exclusive commitment for the exercise of its activity (e.g. exclusive purchase obligation). The quasi-exclusive nature of the commitment is assessed on a case-by-case basis by French courts, independently of the 80% purchase threshold provided for under EU Regulation 2022/720, which is treated merely as an indicative reference.

    Concretely, DIP must be provided, for example, to the franchisee, distributor, dealer or licensee of a brand, by its franchisor, supplier or licensor as soon as the two above conditions are met. French courts have moreover recently had occasion to confirm that the scope of the DIP obligation is not limited to franchise agreements but extends, in particular, to dealership agreements, provided the above-mentioned conditions are met (Paris Court of Appeal, 22 May 2024, no. 22/08672).

    When the DIP must be provided?

    DIP and draft contract must be provided at least 20 days before signing the contract, and, where applicable, before the payment of the sum required to be paid prior to the signature of the contract (for a reservation).

    What information must be disclosed in the DIP?

    Article R. 330-1 of the French Commercial Code requires that DIP mentions the following information (non-detailed list) concerning:

    • Franchisor (identity and experience of the managers, career path, etc.);
    • Franchisor’s business (in particular creation date, head office, bank accounts, history of the development of the business, annual accounts, etc.);
    • Operating network (members list with indication of signing date of contracts, establishments list offering the same products/services in the area of the planned activity, number of members having ceased to be part of the network during the year preceding the issue of the DIP with indication of the reasons for leaving, etc.);
    • Trademark licensed (date of registration, ownership and use);
    • General state of the market (about products or services covered by the contract) and local state of the market (about the planned area) and information relating to factors of competition and development perspective. With respect to the local market, the French Supreme Court (« Cour de cassation ») has held that the franchisor is not required to conduct a market study, but that if one is provided, it must be accurate and verifiable (Cass. com., 18 Oct. 2023, no. 22-19.329).;
    • Essential element of the draft contract and at least: its duration, contract renewal conditions, termination and assignment conditions and scope of exclusivities;
    • Financial obligations weighing in on contracting party: nature and amount of the expenses and investments that will have to be incurred before starting operations (up-front entry fee, installation costs, etc.).

    Beyond the exhaustiveness of the information required under the aforementioned provision, the DIP is subject to a qualitative standard. All information provided — including information provided spontaneously — must be accurate and truthful to ensure that the prospective network member’s consent is fully informed and free from any defect.

    How to prove the disclosure of information?

    The burden of proof for the delivery of the DIP rests on the debtor of this obligation: the franchisor (Cass. Com., 7 July 2004, n°02-15.950). The ideal for the franchisor is to have the franchisee sign and date his DIP on the day it is delivered and to keep the proof thereof.

    The clause of contract indicating that the franchisee acknowledges having received a complete DIP does not provide proof of the delivery of a complete DIP (Cass. com, 10 January 2018, n° 15-25.287).

    The franchisor is subject to a duty to update the DIP until the contract is signed

    In a ruling dated 26 June 2024 (no. 23-14.085 PB), the French Supreme Court held that formal compliance of the DIP at the time of its delivery is not sufficient to exonerate the franchisor from all pre-contractual liability. This position was confirmed by a subsequent ruling of 4 December 2024 (no. 23-16.684).

    These two decisions appear to establish a duty of ongoing updates incumbent upon the network head throughout the entire period between the delivery of the DIP and the execution of the contract. Where significant events occur during that interval — insolvency proceedings affecting network members, major litigation, or structural changes to the network — the network head is required to proactively inform the prospective member. The court then examines whether the failure to disclose such information was liable to distort the candidate’s assessment of the network and, consequently, to vitiate his consent (Cass. com., 26 June 2024, op. cit.).

    A franchisor may therefore not shelter behind the initial regularity of the DIP to discharge its disclosure duty where the network’s situation has materially changed prior to the signing of the contract.

    Sanction for breach of pre-contractual information duties

    Criminal sanction

    Failing to comply with the obligations relating to the DIP, franchisor or supplier can be sentenced to a criminal fine of up to 1,500 euros and up to 3,000 euros in the event of a repeat offence, the fine being multiplied by five for legal entities (article R.330-2 French commercial Code).

    Cancellation of the contract for deceit

    The contract may be declared null and void in case of breach of either article 1112-1 of the French Code civil or article L. 330-3 of the French Code de commerce. In both cases, failure to comply with the obligation to provide information is sanctioned if the applicant demonstrates that his or her consent has been vitiated by error, deceit or violence. In this respect, courts conduct a concrete, case-by-case assessment, taking into account in particular the professional experience and personal due diligence of the distributor: a sophisticated candidate will face greater difficulty in establishing deceit, and his experience in the relevant sector may be sufficient to exonerate the franchisor (Paris Court of Appeal, div. 5 – ch. 11, 26 Apr. 2024, no. 21/13205), even where the information provided was incomplete or inaccurate (Paris Court of Appeal, 20 Jan. 2021, no. 19/03382).

    The path is therefore narrow for the franchisee: he cannot invoke error concerning profitability when it is he who draws up his plan, and even when this plan is drawn up by the franchisor or based on information drawn up and transmitted by the franchisor, the experience of the franchisee who knew the local market may exonerate the franchisor.

    Regarding deceit, Courts strictly assess its two conditions which are:

    • (a material element) the existence of a lie or deceptive reticence (article 1137 French Civil Code), and
    • (an intentional element) the intention to deceive his counterparty (article 1130 French Civil Code).

    Where applicable, the parties must return to the state they were in before the contract.

    Damages

    Although the claims for contract cancellation are subject to very strict conditions, it remains that franchisees/distributors may alternatively obtain damages on the basis of tort liability for non-compliance with the pre-contractual information obligation, subject to proof of fault (incomplete or incorrect information), damage (loss of opportunity of not contracting or contracting on more advantageous terms) and the causal link between the two.

    From Reporting to Governance and Risk Allocation

    Environmental, Social and Governance (ESG) considerations are playing an increasingly influential role in how businesses operate, invest, and manage risk, especially within the European Union, where corporate sustainability and responsibility regulation have been on the agenda in recent years.

    With the adoption of the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD), many companies anticipated a significant shift in compliance. Since then, the EU has introduced simplification measures to streamline reporting and due diligence obligations, reduce the administrative burden, and improve proportionality, particularly for small and medium-sized enterprises (SMEs), while maintaining the core sustainability objectives.

    While opinions may differ regarding the evolution of environmental, social, and governance (ESG) in EU regulation and the subsequent postponements of reporting obligations, regulatory developments appear to have, in practice, supported a shift in perspective. Sustainability is no longer viewed solely as a reporting requirement, but increasingly as a matter of governance, strategy, and risk allocation. This development is welcome, as the regulatory framework’s underlying objective is to advance the green transition, which in turn requires a change in how companies integrate sustainability into their decision-making and operations.

    This focus on sustainability influences businesses of all sizes, including SMEs. Even companies not directly subject to the CSRD or CSDDD anticipate that ESG requirements will be passed down through the supply chain. Many non-reporting SMEs are already embedding sustainability practices, and this trend is likely to continue. In other words, sustainability policies are already affecting companies well before any formal reporting obligations kick in.

    Environmental, Social, and Governance in Contract Architecture

    One of the key means of implementing environmental, social, and governance obligations and objectives in day-to-day business operations is through commercial contracts and the requirements and commitments embedded in them.

    Even where a company itself is not directly subject to extensive reporting or due diligence obligations, corporate sustainability and responsibility expectations flow through the market via contractual relationships. Larger undertakings within the scope of CSRD and, in due course, the CSDDD require contractual assurances, information rights, and cooperation from their business partners, including SMEs operating within their supply chains. As a result, corporate sustainability and responsibility become a question of contractual architecture. Companies must consider not only price mechanisms, liability caps and termination triggers, but also how environmental, social and governance risks and obligations are addressed and allocated between the parties through legally enforceable contractual terms.

    Translating Policies into Binding Obligations

    A typical starting point is the incorporation of a code of conduct or sustainability policies into commercial contracts, often by reference and through an express obligation on the contracting party to comply with them. From a legal standpoint, this raises important drafting questions. Many codes are drafted as high-level public statements. When such policies are converted into contractual commitments, their wording, scope, and hierarchy relative to the main agreement require careful consideration. The obligations must be sufficiently clear to define the parties’ expectations, coherent with other contractual provisions, and proportionate to the commercial relationship. The obligations must also be capable of practical implementation and effective monitoring in the context of the agreement.

    In practical terms, this may mean requiring the supplier to comply with specific labour standards, maintain documented environmental management procedures, report on emissions data, ensure traceability of key raw materials, or allow reasonable access for audits. Clearly defining what is expected, how compliance is demonstrated, and what consequences follow from non-compliance is essential for the clause to function effectively. Otherwise, clauses that appear comprehensive in theory and ambitious in scope may offer limited enforceability in practice, and their impact may remain marginal if compliance cannot be effectively monitored and verified. If policies are not properly translated into binding and operational obligations, the company risks a mismatch between what it promises publicly and what is actually required under its contracts. This may undermine consistency, weaken risk management, and expose the company to reputational and governance risks if its own stated principles cannot be enforced within its supply or distribution chain.

    As part of this process, companies must also consider the protection of trade secrets and confidential information. For example, broad audit or data-reporting obligations may raise concerns about sensitive business information. Contractual terms should balance transparency with the need to protect legitimately proprietary data. Clauses such as confidentiality agreements or carve-outs for trade secrets can be used to ensure that sharing ESG-related information does not compromise confidential business information or competitive advantages.

    Environmental, Social and Governance Clauses Across Different Contract Types

    Besides codes of conduct and sustainability policies, environmental, social and governance-related clauses increasingly take more tailored and transaction-specific forms. In shareholder agreements, sustainability objectives may be reflected in governance structures or even linked to financial outcomes, for example by aligning dividend policies or incentive mechanisms with agreed climate targets. In employment contracts, obligations may extend beyond general compliance and include participation in corporate sustainability training programmes or adherence to internal sustainability guidelines as part of performance expectations.

    In supply and manufacturing agreements, environmental, social and governance provisions may address traceability of raw materials, emissions reporting, waste management, energy efficiency standards or the right to replace a supplier if its environmental practices materially conflict with the contracting party’s sustainability commitments. Such contractual mechanisms increasingly affect SMEs operating as suppliers, as ESG expectations pass through the supply chain.

    Construction contracts often include detailed requirements regarding material selection, lifecycle impacts, carbon footprint calculations and recycling or waste reduction procedures. For example, in Finland, legislation imposes low-carbon and energy efficiency requirements for new buildings, and a party undertaking a construction project is subject to mandatory reporting obligations relating to construction and demolition waste. These statutory requirements are typically reflected and implemented in the relevant project and construction contracts.

    Across these different contract types, the practical significance is consistent. Environmental, social and governance considerations move from the level of general policy into legally enforceable obligations tailored to each specific legal relationship. Contracts function as a mechanism for allocating responsibility, managing compliance risk and aligning commercial incentives with sustainability objectives.

    Proportionate Monitoring and Audit Rights

    In the contractual implementation and monitoring of environmental, social and governance obligations, audit and information rights play a central role. They are closely linked to effective oversight and form an integral part of a coherent contractual framework. In practice, companies typically seek access to relevant data from their business partners and, where appropriate, establish inspection or audit rights to enable meaningful monitoring and verification, whether conducted directly by the company or, commonly, by an independent expert appointed for that purpose.

    However, such arrangements must remain balanced. Overly burdensome provisions may needlessly disrupt day-to-day operations and reduce the willingness to cooperate, particularly for SMEs with limited administrative capacity. By contrast, well-designed mechanisms that balance transparency with confidentiality and operational feasibility are more defensible and more likely to function effectively in practice.

    Contractual Remedies

    As a general principle, the consequences of a breach are determined by the terms agreed between the parties. In practice, the parties will typically first seek to resolve the matter through discussion and good faith negotiations, allowing the non-compliant party an opportunity to clarify the situation and implement corrective actions within a reasonable timeframe. If negotiations do not lead to a resolution, it may be appropriate to proceed to stronger measures, such as contractual penalties, indemnification obligations, price adjustments, temporary suspension rights or other agreed sanctions, applied in light of the nature and severity of the breach.

    The contract should clearly define what constitutes a breach, how it is assessed and what remedies are available in each scenario. Clear and proportionate step-by-step remedy structures enhance legal certainty, reduce the risk of disputes and ensure that material or repeated breaches may trigger more significant consequences, including termination where justified.

    Strategic and Voluntary Environmental, Social and Governance Commitments

    In the current EU landscape, implementing ESG considerations in commercial contracts is no longer simply a matter of reacting to directives. It is a broader exercise in risk management and corporate governance. Even as the implementation details of the directives may continue to evolve, market expectations, financing conditions and reputational considerations remain key drivers of sustainability integration.

    In addition, some companies choose to position themselves as frontrunners in sustainability for strategic and reputational reasons. They may therefore incorporate voluntary environmental, social and governance mechanisms and requirements into their contracts that go beyond, or are not directly derived from, binding directives. By doing so, they signal to investors, customers and other stakeholders that sustainability is treated as a core business priority rather than merely a compliance obligation.

    At the same time, it is important to recognise the practical limits of such commitments. Ambitious sustainability requirements may be more challenging for SMEs with limited financial and administrative resources. Meeting extensive reporting, certification or traceability standards can require investments in systems, personnel and external expertise. If contractual expectations are not calibrated to the size and capacity of the counterparty, they may limit the ability of SMEs to participate in certain supply chains. A balanced and proportionate approach helps ensure that sustainability objectives remain achievable and commercially workable across the contractual chain.

    Conclusion

    For legal practitioners, the central task is not to increase the number of environmental, social and governance clauses as such, but to ensure their quality, coherence and practical relevance. The objective is to design contractual mechanisms that are proportionate, enforceable and aligned with the company’s actual risk profile, industry context and sustainability priorities. Commercial contracts remain one of the most concrete tools for translating sustainability strategy into operational practice. Moreover, every contract lawyer should understand and apply key sustainability principles in their work, ensuring that ESG commitments become integral to legal advice and contract drafting.

    The Strait of Hormuz is likely the most strategically important point for the global oil trade. In fact, approximately 20% of the world’s oil and gas passes through this narrow passage between the Gulf of Oman and the Persian Gulf every day.

    Following the outbreak of war in the region, the impact on energy markets was almost immediate: oil prices quickly rose above $100 per barrel, and it is unclear how high they may climb in the coming weeks and months. As a result, transportation, production, and procurement costs are rising across industrial supply chains in many sectors.

    For many companies engaged in international trade, this phenomenon creates a very real problem. Contracts signed months (or years) earlier—perhaps at a fixed price—must be fulfilled in a completely different economic context.

    A manufacturer that sells goods for delivery in six or twelve months may find itself producing and shipping at much higher energy costs, while the price agreed upon with the customer remains unchanged.

    This is a situation that recurs cyclically, for various reasons: from the COVID-19 pandemic to the subsequent raw materials crisis, and on to current geopolitical tensions.

    When the increase in costs is so sudden and significant, a question inevitably arises: must the contract still be performed under the original terms, or is it possible to suspend or renegotiate the agreement to adapt it to the new circumstances?

    The answer depends on several factors: first and foremost, on what the parties have (or have not) provided for in the contract, but also on the law applicable to the relationship and on the interpretation that judges or arbitrators may give to the rules in the event of a dispute.

    Force Majeure and Hardship: Two Different Concepts

    When extraordinary events occur—such as a war, an energy crisis, or the disruption of a trade route—many operators immediately invoke force majeure. However, in most cases, these situations fall instead under the category of hardship.

    It is therefore essential to distinguish between these two situations.

    When an Event Constitutes Force Majeure

    Force majeure applies to cases where an extraordinary and unforeseeable event makes it impossible to perform the contract.

    The characteristics of the grounds for exemption from liability depend on the law applicable to the commercial relationship, but generally require:

    • unpredictability of the event;
    • the event being beyond the affected party’s control;
    • the impossibility of avoiding or overcoming the event through reasonable efforts.

    Typical examples include:

    • orders from authorities requiring the suspension of production
    • embargoes or export bans
    • logistical disruptions caused by war

    In these situations, performance is not merely more costly: it becomes objectively impossible. The consequence is that the party unable to perform is generally exempt from liability for the duration of the event.

    Hardship

    The situation is different when performance of the contract remains possible but becomes economically much more burdensome.

    The concept of hardship is generally based on four prerequisites:

    1. an event occurring after the conclusion of the contract
    2. unpredictability and extraordinary nature of the event
    3. a substantial alteration of the economic balance of the contract
    4. excessive burden of performance, but not impossibility

    A sharp increase in the price of oil, gas, or other raw materials often falls into this category.

    Goods can be produced and delivered, but doing so may entail costs far higher than those anticipated when the contract was signed.

    The ripple effect along the international supply chain

    In global industrial supply chains, the same goods are often the subject of a series of consecutive contracts.

    The manufacturer sells to a trader, who sells to a processing company, which resells to an importer in another country, who in turn distributes the product to the end market.

    When a hardship event occurs—such as a sharp rise in energy prices—the effect tends to ripple throughout the entire supply chain.

    The first party affected by the cost increase will try to pass the increase on to its contractual counterpart, who, in turn, will find themselves in the same situation with the next link in the chain.

    The risk is clear: one of the operators in the middle of the chain may face increased upstream costs without being able to pass them on downstream.

    This is one of the most common problems in international supply chains.

    What happens if there is no clause regarding price fluctuations

    In commercial practice, it often happens that parties operate on the basis of orders and order confirmations without a formal written contract, or that a contract exists but contains no provisions regarding price fluctuations or hardship.

    In such cases, when costs increase sharply, it is necessary to determine which law applies to individual sales contracts across the supply chain.

    This can lead to very different situations:

    • one law may allow for price revision or termination of the contract
    • another law aplicable to a second contract may not provide for equivalent remedies
    • a third contract may contain much more restrictive contractual clauses

    The practical result is that an operator in the middle of the chain may face a price increase from their supplier without being able to pass it on to the customer.

    A Common Legal Framework: The Vienna Convention on the International Sale of Goods (CISG)

    Fortunately, many international sales contracts are governed by the 1980 Vienna Convention on the International Sale of Goods (CISG).

    The convention has been ratified by 97 countries, including Italy and most major trading partners, such as the U.S., Canada, China, Germany, France, Spain, etc.

    The central provision is Article 79, according to which a party is not liable for non-performance if it proves that the non-performance is due to an impediment:

    • beyond its control
    • unforeseeable at the time of the conclusion of the contract
    • unavoidable or insurmountable

    Traditionally, this provision has been applied to cases of force majeure.

    In recent years, there has been debate over whether it can also be applied to cases of hardship, but international case law tends to be very cautious.

    International case law on Hardship

    Court decisions reflect a rather strict approach.

    In some cases, even very significant increases in raw material costs have not been considered sufficient to modify or suspend the contract.

    The reasoning is simple: those who operate professionally in international trade must take into account a certain degree of market volatility.

    Only when the increase in costs exceeds an exceptional and unforeseeable level such as to radically alter the balance of the contract can hardship be invoked.

    One of the most frequently cited cases is the Belgian Supreme Court’s decision in the Scafom case, which recognized the right to renegotiate the contract following a 70% increase in the price of steel.

    However, such cases are relatively rare.

    Generic clauses that serve no purpose

    Many contracts contain hardship clauses copied from standard templates (boilerplate).

    The problem is that these clauses often:

    • list the effects of hardship
    • but do not define when hardship actually occurs

    The result is that, when prices rise, the parties may have very different opinions on what constitutes an “exceptional” increase and whether the event in question was “unforeseeable” or not.

    The clause, therefore, does not resolve the issue, but defers it to discussion between the parties and, in the event of a failure to reach an agreement, to the courts or arbitrators.

    What criteria can define a hardship situation

    To make the clause truly effective, it is useful to establish objective parameters.

    Among the most commonly used in international contracts:

    • an increase or decrease in the price of a raw material beyond a certain threshold (±20% or ±30%)
    • an increase in transportation or logistics costs within certain limits;
    • significant fluctuations in the exchange rate beyond a specified range;
    • the introduction of tariffs or trade restrictions

    These parameters, linked to tolerance ranges, allow the parties to quickly and unambiguously identify a hardship event.

    Remedies in the Event of Hardship

    An effective clause should also address how to handle the situation.

    The most common solutions are:

    • renegotiation of the contract in good faith
    • apply an automatic price adjustment
    • appointment of an independent third-party expert to determine the new price
    • temporary suspension of the contract
    • right of withdrawal if no agreement is reached

    These tools allow the parties to manage the crisis without resorting to litigation.

    Audit of existing contracts: what to do now

    At this point, the practical question becomes: how should we manage the issue in existing business relationships?

    The first step is to conduct an audit of existing contracts with suppliers and customers.

    1. Introduce comprehensive contracts in new relationships

    If the relationships are governed solely by purchase orders and order confirmations, it is advisable to take this opportunity to draft comprehensive international sales contracts that include:

    • a hardship clause
    • warranty provisions
    • remedies for breach
    • limitations of liability

    2. Update existing contracts

    If the relationship is already governed by a contract, you should check whether a hardship clause exists.

    If not, it may be useful to propose to the other party:

    • a new contract, or
    • a contract addendum dedicated to managing price fluctuations.

    This helps prevent future conflicts and provides both parties with an effective tool to manage potential price shocks along the supply chain.

    Conclusion

    Commodity and energy crises demonstrate how exposed international contracts are to sudden changes in economic conditions. When a contract does not clearly address hardship management, the risk does not disappear; it simply shifts along the supply chain until it settles on the weakest link.

    For this reason, companies operating within international supply chains should view the hardship clause as a strategic tool for managing contractual risk. A well-drafted contract does not eliminate market volatility, but it allows the parties to address it with clear rules, reducing uncertainty and preventing disputes.

    Executive Summary

    The African Continental Free Trade Area (AfCFTA) remains one of the most ambitious integration projects in the world. Yet, several years into its operational phase, it has not (yet) delivered the structural shift many expected. A recent analysis underscores the gap between political momentum and economic reality: implementation remains uneven, the agreement is still used by only a portion of participating states, and non-tariff barriers and infrastructure deficits continue to dominate the cost of doing business across borders.  For Egypt, the opportunity is still real — but it depends less on treaty headlines and more on enabling conditions: trade logistics, customs efficiency, regulatory convergence, and competitive industrial capacity. 

    Looking Back: The Promise of a Single African Market

    When the AfCFTA was launched, expectations were understandably high. A continent-wide trade framework was supposed to reduce tariffs, facilitate trade in goods and services, and strengthen regional value chains — with the broader goal of moving African economies up the value ladder.

    In my 2022 article, I asked whether AfCFTA could become a game changer for Egypt, given Egypt’s industrial base, strategic geography, and the potential to diversify export markets beyond traditional partners. (For background, see the earlier article here”).

    The Reality Check: Intra-African Trade Remains Structurally Weak

    Several years later, the interim assessment is sobering. As the Frankfurter Allgemeine Zeitung (FAZ) recently put it, AfCFTA is not a “game changer” yet, and only about half of member states currently meet the practical prerequisites to trade under the agreement.

    A deeper reason is structural: no other world region trades so little with itself, and while statistics may undercount informal cross-border flows (especially in food), the overall picture remains unchanged.

    Trade integration cannot deliver transformative outcomes if production, logistics, and institutions do not support scale.

    Implementation Has Been Slow — and Often Symbolic

    Operationalisation did not start with full-scale liberalisation. Instead, the AfCFTA began with a pilot approach: the Guided Trade Initiative (GTI) launched in October 2022, initially with eight states, later joined by additional countries, including Nigeria and South Africa by spring 2025.

    The GTI created valuable learning effects, but it also underlined a key point: early progress was often presented through symbolic deals, while product coverage and volumes remained limited. FAZ highlights that only selected goods could be traded duty-free and that key sectors remained constrained for a long time due to missing or unresolved technical rules.

    A pilot, however, cannot substitute for full operational certainty — the kind businesses need to restructure supply chains and invest.

    Tariffs Are Not the Main Barrier — Trade Costs Are

    AfCFTA is frequently discussed in terms of tariff liberalisation. Yet, evidence suggests that the largest gains do not come from tariffs but from reducing non-tariff barriers and improving trade infrastructure.

    FAZ points to a central reality: tariffs tend to add around 20–30% to intra-African trade costs, whereas non-tariff costs can be far higher — driven by bureaucracy, lack of harmonised standards, inefficient border processes, and transport barriers.

    This is the crux: even with reduced tariffs, trade will not expand meaningfully if goods still cannot move cheaply, quickly, and predictably.

    Integration Complexity and Distributional Politics

    Africa’s integration landscape is shaped by multiple overlapping regional economic communities and trade regimes. This creates legal and administrative complexity — often described as an integration “spaghetti bowl.” FAZ notes the challenge of coordination and the continued fragmentation of rules.

    There is also a political economy dimension. Intra-African trade is heavily influenced by a small number of larger economies — and the distribution of benefits matters. FAZ highlights the dominance of major players (notably South Africa) and the concern that tariff liberalisation alone may entrench existing industrial advantages.

    Where governments expect asymmetric outcomes, resistance often takes the form of delay, narrow implementation, or persistent non-tariff barriers.

    What This Means for Egypt: The Opportunity Is Real — But Conditional

    Egypt’s strategic case for AfCFTA participation remains strong: industrial potential, geographic location, and the opportunity to access and shape growing markets. But the experience so far suggests that the treaty text alone does not generate trade flows.

    For Egypt’s private sector, the decisive factors are practical:

    • predictable and efficient customs clearance and border procedures,
    • logistics corridors and port efficiency,
    • regulatory convergence (standards, certification, compliance),
    • stable access to trade finance and payments,
    • competitive energy and production conditions for manufacturing and processing.

    AfCFTA can support these developments — but it cannot replace them.

    The “Game Changer” Pathway: What Must Happen Next

    FAZ concludes that AfCFTA will only become truly impactful if it is paired with the fundamentals: major infrastructure investment, stronger production and processing capacity, and a credible industrial policy.

    At the same time, Africa faces a classic chicken-and-egg problem: without development there is limited investment appeal; without investment there is limited development.

    For Egypt and its partners, a pragmatic strategy would be to:

    1. treat AfCFTA as a platform for real trade-cost reduction, not only tariff debates;
    2. focus on a limited number of scalable corridors and sectors where regional value chains can realistically grow;
    3. strengthen implementation capacity so that preferences become usable for firms — especially SMEs;
    4. enhance legal certainty and dispute resolution reliability for cross-border commerce.

    Conclusion

    AfCFTA remains a landmark achievement in terms of political commitment. But as of today, it has not yet been the “game changer” many hoped for.

    For Egypt, the key question is no longer whether AfCFTA is visionary — it is. The question is whether governments and businesses can translate it into lower real trade costs, higher competitiveness, and bankable cross-border transactions. If those enabling conditions improve, AfCFTA’s promise can still become commercial reality.

    After “Liberation Day,” many foreign companies offered discounts to American importers to help them offset the tariffs. A few months later, the US Supreme Court declared the „reciprocal“ tariffs unlawful, but on the same day, President Trump announced new tariffs. In this article, we provide a practical overview of how to handle various scenarios, shifting from a reactive, unstructured approach to deliberate management of price volatility and trade flows caused by the introduction, adjustment, and removal of tariffs.

    Tariff Sharing agreements

    For a long time, the question has been straightforward: who absorbs the extra customs cost? The exporter? The importer? Both? The question remains important, but today it is incomplete.

    The new scenario, in light of the recent ruling by the US Court of Justice on March 20, 2026, is: what happens if that duty is then canceled and refunded? If the cost was shared between the parties, the benefit of the refund must follow a consistent logic. In the absence of a clear agreement on this point, however, there is a risk of economic misalignment that could compromise the commercial relationship.

    Let’s imagine an Italian winery that sells its products to a US importer. Following the introduction of reciprocal duties, the parties have decided that the exporter will grant an extraordinary discount of 7.5%, explicitly motivated by the need to share the impact of the duty. The commercial relationship continues, volumes remain stable, and the importer avoids passing on the entire increase to the end customer.

    As a result of the Supreme Court ruling (or, in the future, another ruling or administrative decision), the importer obtains a refund of the duties paid during that period.

    If no formal agreements have been made on this point and the documentation refers generically to a „commercial discount“ and says nothing about reimbursement, the situation afterward may be difficult to reconstruct and, above all, could lead to commercial tension. As a result, a positive development (the cancellation of the duty and the right to reimbursement) becomes a problematic factor that jeopardizes the relationship.

    Is the exporter entitled to a refund of the discounts granted to mitigate the duties?

    In the absence of a different agreement between the parties, the right to reimbursement belongs to the party who paid the duty, i.e., in most cases, the importer. Therefore, there is a risk that the importer will enjoy a double benefit (the discount and the duty refund), while the exporter will get nothing.

    For this reason, it is essential that the parties do not limit themselves to negotiating prices and discounts, but also establish the consequences of the adoption, modification, or revocation of duties on the contract, including any refunds.

    To achieve this, the first step is to accurately classify and document the discounts granted. If only a „commercial discount“ appears in emails, commercial orders, credit notes, and invoices, it will be harder to later argue that this discount was actually an extraordinary, temporary contribution related to the duty. Conversely, if the documentation and contract specify that it is a tariff sharing or tariff mitigation measure, identifying the amounts to be refunded after the fact becomes much simpler.

    The goal is to create a clear view of the trend in discounts and payments so that, if needed, financial flows can be adjusted to align with the original terms of the agreement: if the exporter has helped cover a cost that then, in whole or in part, does not end up materializing, they will be eligible for a refund of the contribution paid.

    The contract will therefore include, in addition to the Tariff Sharing clause, a Tariff Reimbursement Allocation clause, which states that if the importer receives a refund, credit, or any other economic benefit related to the duty for which the exporter has granted a discount, the importer must return the corresponding portion of the benefit to the exporter in full. or proportionally, depending on how the parties intend to distribute risk and incentive.

    Importer’s responsibility to seek reimbursement

    It is unclear whether, in the case of US reciprocal duties, importers can simply file an administrative claim to get a refund or if legal action will be required. The latter seems more probable.

    Generally, obtaining a duty refund involves action, deadlines, documentation, and coordination with brokers and customs consultants. In most cases, the entity controlling the process is the importer (or someone acting on their behalf).

    This raises a sensitive but very real issue: if the importer knows that they will have to invest time and money to obtain a refund, only to then have to share the benefit with the exporter, their incentive to take action may be reduced. To prevent this inertia  the contract should contain an express obligation to take action, set out as a duty of best efforts or commercially reasonable efforts.

    For example, the contract should specify that the importer must inquire about the conditions and time limits of the process, keep relevant documentation, regularly inform the exporter about the progress of the initiatives, and not unilaterally waive or reduce the claim if it affects the exporter’s economic rights.

    Preventive Agreements on Litigation and Cost Allocation

    When reimbursement involves a lawsuit or structured legal action, the obstacles are organizational and financial: who decides if and when to proceed, who selects the lawyers, who pays the costs upfront, how the net recovery is divided, and who has the final say on a settlement. This generally applies to all contracts, not just this case: dispute resolution methods must be addressed and agreed upon before the problem arises.

    Otherwise, the dispute resolution process risks becoming a secondary improvised negotiation at the worst time — when the parties are already under pressure from margins, cash flow, and regulatory uncertainty. As a result, it becomes much harder to reach an agreement.

    How to handle new tariffs and their potential cancellation

    To safeguard against uncertainty, the agreement should be organized into two stages.

    • The first stage regulates the immediate impact of the change in scenario, for example, the introduction of a new tariff or its increase (renegotiation, cost sharing, automatic adjustment : I discussed this in this article).
    • The second stage manages the possible „rollback“ (right to reimbursement, process, allocation criteria).

    This approach has a clear benefit: it does not force the parties to discuss every time the tariff regime changes or a decision to cancel tariffs is made. Instead of reacting to market changes, a tool is adopted to manage potential scenarios, which is much more resilient commercially and easier to oversee, as the rules have already been agreed upon.

    This allows the impact of duties to be regulated not as an extraordinary variable, to be agreed upon on a one-time basis, but as a structural, adaptable phenomenon that could last a long time.

    This is why it is crucial to know how to draft contracts that cover both the current situation and potential changes, including any refunds.

    Conclusion: Three practical steps for companies exporting to the US

    The first is to agree on the consequences for the contract of the introduction of a new duty, increasing it, or revoking it (renegotiation, cost sharing, automatic price adjustment, right to share the refund).

    The second is to clearly document any discount granted to offset a duty. If it remains a generic „commercial discount,“ the right to a refund if reimbursement occurs will be much harder to enforce.

    The third step is to determine what happens if the duty is canceled or revoked: the importer’s responsibility to take action to get a refund, manage the administrative process or litigation, how to divide costs, who oversees the activities of consultants and lawyers, and how the recovered funds will be allocated.

    How do you approach negotiating a trade agreement with China?

    Based on my experience, let’s examine the issues to be addressed and the main questions to ask, taking the negotiation of a trade distribution agreement as a practical example.

    Let’s start with the first issue that is important to clarify.

    Nice Business Card – But Who Is This Guy?

    Business cards, websites, printed or digital brochures, presentations, and any other materials shared in English have no official value in China.

    The company name of the counterparty and the first and last names of people representing it or acting on its behalf, written in English, are only fictitious names.

    To be certain of the company’s data and the identity of the persons, it is necessary to ask for the information in Chinese, with particular reference to the company’s business license (equivalent to the Companies House or Chamber of Commerce’s excerpt), from which the name, corporate purpose, registered and paid-up share capital, and the name of the legal representative can be inferred.

    The data can then be verified by accessing the portal of the State Administration of Industry and Commerce (SAIC) of the province where the Chinese party is based.

    This first verification is essential to ensure that you do not waste time or even run into scams (here’s an in-depth article on Legalmondo’s blog).

    If You Don’t Own Your Trademark, Someone Else Will – and Charge You for It

    Trademark First, Trade Later. China operates on a first-to-file system for trademarks, which means that the first person or company to register a trademark – not necessarily the original creator or most famous user – gains the legal rights to it. This creates a serious risk: if you haven’t registered your trademark in China, someone else might do it before you, and then either use it freely or demand a hefty ransom to give it back. Even high-profile figures like Elon Musk and Michael Jordan have been entangled in costly and protracted disputes with Chinese trademark squatters. In many cases, getting the mark back is highly complicated, and sometimes legally impossible.

    To avoid this, register your trademarks early, even before entering the Chinese market. File directly with the China Trademark Office (CTMO) and don’t stop at the English version — consider registering a Chinese character version as well, since that is how your brand will often be known locally.

    Once that base is covered, clearly state in your contract that your Chinese partner is not allowed to file a registration of any of your trademarks in China, in Latin or Chinese characters, and that he will use trademarks and IP rights in strict conformance to the contract and your instructions.

    For a deeper dive into how to effectively protect your IP rights in China, check out our detailed article on the Legalmondo blog.

    Contracts can wait. First, get on the same page

    When negotiating with a Chinese partner, it’s often a mistake to begin the conversation by exchanging contract drafts. Instead, focus first on the substance — the relationship’s commercial and technical terms. Using a clear checklist of key discussion points (such as products, pricing, delivery terms, technical standards, after-sales support, exclusivity, duration, payment terms, etc.) helps ensure that both sides are aligned on what really matters. Take detailed notes and keep minutes of the discussions, especially where and when consensus is reached, and make sure those minutes are circulated and expressly agreed upon. Once substantial agreement has been achieved on the main terms, this memo can then be handed over to your lawyer, who will translate the business understanding into clear and coherent contractual language. This approach saves tons of time, as it helps avoid unnecessary back-and-forth on legal language before the core deal is in place.

    Think Your NDA Covers You in China? Think Again

    Yes, they are—and often underestimated. A well-drafted Non-Disclosure Agreement (NDA) is essential when the parties plan to exchange confidential information, such as technological know-how, commercial strategies, supplier data, or client lists. Especially in the early phases of negotiation or cooperation, before a main contract is signed, an NDA helps protect intellectual and business assets.

    However, as with all contracts in China, a generic NDA template copied from other jurisdictions will likely be of limited use. To be truly effective, the NDA must be adapted to the specifics of the Chinese legal environment. This includes ensuring that it is enforceable in China: the NDA should include the proper dispute resolution mechanism (see below on why you should consider applying Chinese law and litigating in China), and it must specify clear, valid, and proportionate penalties for breach. In Chinese practice, stating specific contractual penalties (liquidated damages) is often more effective than vague references to compensation, as courts and arbitrators in China tend to enforce these more reliably if they are reasonable.

    While a good NDA is useful, it often falls short in China’s manufacturing and sourcing landscape. This is where the NNN Agreement – standing for Non-Disclosure, Non-Use, and Non-Circumvention – becomes critical. Unlike standard NDAs that primarily focus on confidentiality, an NNN Agreement is designed to address the unique risks of doing business in China. It prevents the recipient from not only disclosing confidential information but also from using it for their benefit or bypassing the disclosing party to work directly with suppliers, clients, or partners. Which, in China, is a very real risk.

    This broader scope is vital when dealing with Chinese manufacturers or intermediaries, who may otherwise be tempted to replicate products or contact customers directly or through third parties. As seen with the NDA, also the NNN Agreement must be drafted in Chinese, governed by Chinese law, and enforceable in Chinese courts -otherwise, it may offer little real protection.

    Joint venture? Easy, Cowboy

    A joint venture is often the first proposal that comes up when negotiating with a potential Chinese partner. It seems appealing: sharing risks and investments, accessing the local market with an ally, leveraging their knowledge and network of contacts. But the reality is often very different from what it appears to be.

    A joint venture is a complex, expensive, and rigid corporate structure that requires significant investments of money, time, and human resources, as well as the ability to continuously manage often divergent interests among the partners. The vast majority of Sino-Foreign JVs have gone wrong, or will go wrong. Or very wrong. First and foremost, because the JV is usually managed by the Chinese partner, and exercising effective control over the company’s operations is a very challenging undertaking.

    Before going down this road, it is essential to ask yourself a few questions: Is the joint venture really indispensable for developing this business in China? (Spoiler: generally, no). Are there less restrictive and risky alternatives, such as a distribution agreement or a licensing agreement? (Yes, almost always). And above all: how well do we really know our potential partner?

    A joint venture should only be considered if it is strictly necessary for the project’s development, after carefully verifying the commercial viability and the reliability of the Chinese partner, and ensuring the ability to maintain effective control over the JV’s operations.

    It is better to start with simpler and more flexible forms of collaboration to test the market and the relationship with the other party before committing to such a demanding investment. Otherwise, the mirage of the joint venture risks turning into a nightmare that can be very costly.

    Memorandum of Understanding: Where Good Intentions Become Bad Contracts

    A Memorandum of Understanding (MoU) is a helpful tool at the early stage of a commercial relationship. It serves as a roadmap for future negotiations, where the parties outline the main principles and intentions that will guide the drafting of the final agreements. When used correctly, an MoU can significantly facilitate negotiations by ensuring that both sides commit to negotiating the agreement in good faith and share a common understanding of key points such as pricing models, territorial scope, exclusivity, milestones, budget, or performance expectations.

    However, an MoU must be used for what it is: a preparatory document, not a binding contract. Care must be taken to avoid ambiguity and unintended commitments. The text should clearly specify that the parties remain free to conclude – or not – the final agreements and which clauses are non-binding – such as the commercial framework or indicative timelines – and which provisions are binding, typically confidentiality, exclusivity during the negotiations (if agreed), governing law, and dispute resolution. A poorly drafted MoU, which includes overly precise and complete terms, can be misinterpreted as a final agreement, creating unnecessary legal risk. So yes, MoUs are valuable – but only when used correctly. If you’d like to know more, go deeper by reading this article.

    Bad Drafts, Big Headaches, Poor results

    Draft agreements used in China are often copied and pasted from incomplete, superficial, poorly organised templates written in bad English, which often do not match the Chinese version of the contract.

    Correcting and integrating these drafts is complicated and more time-consuming than starting from a good template, with suboptimal results.

    It would be better to propose a consistently constructed text and ask the other party to propose any changes and additions to this draft.

    Your Western Contract Template Won’t Work Here

    Even if an English-language contract is perfectly valid, there are many reasons why using contract templates built for other countries in the Chinese market is inadvisable.

    The first is the fact that Anglo-Saxon-based agreements, such as those for the U.S., refer to a common law system (which is based on judicial decisions and case law precedents) that is very different from that of civil law countries (such as China and Italy), which derives from the Roman legal tradition, based on a codified set of written laws.

    It follows that the layout of an agreement on the Anglo-Saxon model is different, much more detailed, and wordy than that of a typical agreement based on a civil law system. Since contract negotiations in China are generally lengthy and complex, working on redundant and complicated text at the outset does not help.

    If we stick to the example of a distribution contract, it should be added that it is advisable to apply Chinese law to provide for arbitration based in China (e.g., at CIETAC) or in Hong Kong or Singapore (third countries, where, however, the costs of the procedure increase significantly) as the mode of dispute resolution. So, the contract should be built on a model that conforms to the law that will apply to the relationship.

    Home Court Advantage Won’t Help You in China. In fact, quite the opposite

    This is a typical point of disagreement in the negotiation of an international contract: the parties aim to have the law of their own country apply, and to stipulate that any disputes be adjudicated by their domestic courts.

    In our case, insisting on the application of Italian (or any other foreign) law and state court is not a good idea: it should be considered, in fact, that a distribution agreement is carried out, for the vast majority, in the country where the distributor operates and where the products are sold (in our case, in mainland China).

    In disputes, the parties‘ (particularly the manufacturer’s) interest is to obtain a quick decision by the adjudicating body, especially if situations requiring immediate protection (such as unfair conduct or counterfeiting of trademarks and patents by the distributor) are ongoing.

    None of this is possible if one goes to an Italian judge (with lengthy litigation time and the need then for a complex and costly process to recognise and enforce the decision in China); on the contrary,  an arbitration in China, applying Chinese law, allows one to reach a decision quickly (on average 6-9 months) and, if necessary, also to obtain urgent measures to stop any unfair conduct.

    Chinese Law Isn’t a Black Box (If You Know What You’re Doing)

    The lawyer assisting you should know it.

    Therefore, it is not a leap in the dark, and one should not fear surprises.

    In addition, it should be remembered that an agreement is primarily based on the covenants that the parties have written in the contract; therefore, if the contract has been well drafted, the rules to be applied are clear.

    Finally, if we consider distribution agreements, keep in mind that they are a framework contract, within which a series of separate product sales contracts are concluded. If both countries are contracting parties to the 1980 Vienna Convention on the International Sale of Goods (CISG), then the uniform, clear, and balanced rules of the convention apply automatically, just don’t opt out!

    One Contract, Two Languages

    The contract is also valid in English only.  However, it is undoubtedly advisable to draft a Chinese version with facing text.

    This is for several reasons: first, it prevents the Chinese party from having to arrange for a translation of the text during negotiations for its own internal use (top managers often do not speak English), thus slowing down the various steps of negotiations.

    Also, to ensure that the Chinese side fully understands the agreement’s content and to avert misunderstandings (real or instrumental) about the interpretation of certain covenants.

    Finally, it should be borne in mind that if the contract were later to be used before a court or administrative authority in China, the only language admitted would be Chinese; for this reason, it is better to have already a text agreed and signed by the parties in Chinese as well, rather than having to prepare a unilateral translation later.

    Sign. And chop

    Does the contract need to bear the company’s official stamp? Yes, and this point is absolutely crucial. In China, a company’s official „chop“ (the red-ink stamp) is equivalent to a signature and is conclusive proof that the person signing the contract has the authority to represent the company. A signature alone, even from someone with an important-sounding title, may not be sufficient if it is not accompanied by the official chop. Without it, the contract might later be challenged or even considered void. Before signing, always verify that the stamp used matches the one registered with the company’s business license or official corporate records, and ensure that the stamp is applied on every page or at least on the signature page, in line with local practice.

    Don’t Let Your Contract Collect Dust

    Things change fast, especially in China. New products are added, market conditions evolve, people leave the company, new competitors emerge on the horizon, and so on. Companies constantly adapt to the new conditions, and so must the contract.

    Any change in the relationship should be formalized correctly. To avoid misunderstandings and disputes, it’s advisable to include an integration clause in the contract, specifying that any amendments or additions will only be valid if agreed in writing, signed by the parties’ authorized representatives, and annexed as an addendum to the original agreement.

    It’s not enough to include this clause – you must follow it consistently. If things change, agreements reached verbally, through Wechat messages, and through email exchanges may make things complicated if they are not formalised adequately according to the procedure set out in the original contract.

    If you’d like to go deeper, check out this article.

    Federico Vasoli

    Rechtsgebiete

    • Unternehmen
    • Auslandsinvestitionen
    • Fusionen und Übernahmen
    Kontakt Federico

    Schreiben Sie an Federico





      Legalmondos Datenschutzbestimmungen lesen.
      This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

      France | Pre-contractual disclosure in distribution and franchise agreements

      6. Mai 2026

      • Frankreich
      • Vertrieb
      • Franchising

      Foreign franchisors entering into franchise agreements in Spain should take careful note of the content of the judgment issued by the Provincial Court of Córdoba on November 20, 2025, and require that the partner(s) and the directors of the franchisee company expressly guarantee and indemnify the payment of any debts arising from the franchise agreement.

      Spanish corporate law establishes the principle of liability for the directors of corporations or limited liability companies when the company is subject to dissolution (for example, due to losses that reduce equity to less than 50% of the share capital) and, despite this, they fail to convene a meeting to adopt corrective measures (dissolution or capital increase).

      In the case of the aforementioned ruling, the franchisor was unable to collect the debt arising from the franchise agreement from the franchisee due to the latter’s insolvency; so it decided to claim that debt from the company’s administrator based on the provision mentioned above, that is, due to the fact that the franchisee company was facing dissolution due to losses and the administrator had not convened a shareholders’ meeting, as was his obligation, so that the shareholders could decide how to resolve the situation.

      The ruling we are discussing from the Court of Appeal of Córdoba upholds the lower court’s decision and dismisses the franchisor’s claim against the sole administrator of the franchisee company, stating that:

      With regard to liability for corporate debts under Article 367 of the Capital Companies Act, the court recognised the existence of the corporate debts, the presence of grounds for dissolution, the breach of the legal obligations by the corporate administrator, and his liability, but found that a ground for exoneration from liability existed in accordance with the doctrine of “known risk.” Thus, it was noted that the plaintiff is a franchisor and X. S.L. was the franchisee, and it was evident from the electronic communications that the franchisee was under constant monitoring and the franchisor was aware of the risk involved in the operations, halting the shipment of goods (clothing) as soon as the limits of the guarantees granted were exceeded, meaning the plaintiff voluntarily assumed the risk. For all these reasons, the claim was dismissed.

      In conclusion, and in light of the foregoing, the present franchise relationship and its conduct allow us to consider that it has been established that the franchisor (creditor) had greater knowledge of the franchisee’s (debtor’s) financial situation, beyond the information appearing in the annual accounts filed with the Commercial Registry, as it was the franchisee’s primary supplier. And this knowledge and control of the debt by the franchisor (through the increase in orders) justifies the exoneration of the corporate director’s liability for corporate debts under Article 367 of the Capital Companies Act, which leads to the dismissal of the appeal

      The legal theory or principle of Known/Accepted Risk, to which the judgment refers, holds that harm caused to a third party, with or without a contractual relationship in place, is not considered unlawful if the victim was aware of the risk and voluntarily assumed it.

      This doctrine was initially developed within the framework of tort liability: whoever engages in a risky activity and reaps its benefits must bear its negative consequences, that is, the risk—(cuius commodum, eius incommodum).

      However, case law has extended the application of this theory to the field of contractual liability, as demonstrated in the judgment under discussion.

      Therefore, since the plaintiff was aware of the defendant’s financial situation and solvency—having “monitored” its activity as a franchisor—and despite this, decided to maintain the contract’s validity, thereby increasing the debt, the ruling holds that the franchisor assumed the risk, which constituted grounds for exonerating the administrator from liability. However, more concerning than the above is that this “known risk” theory could be  considered applicable to the liability of the franchisee company itself, which could be exonerated from liability based on the franchisor’s monitoring of its activities.

      The conclusion of all the above is that, based on this application of the known risk theory, franchisors may face difficulties in claiming debts owed by the franchisee company from its directors in the event of the company’s insolvency; therefore, it is highly advisable that, when signing the franchise agreement, a joint and several guarantee for the franchise’s potential future debts be required from its directors and partners, which, moreover, is a fairly standard practice.

      In this way, the objection based on the theory of known risk would not come into play.

      Vietnam has been added to the EU list of non‑cooperative jurisdictions for tax purposes (Annex I), following the Council’s update of 17 February 2026.

      For EU companies buying goods and services from Vietnam, this is not an outright ban on trade, but rather a signal that substantially heightened tax governance scrutiny, documentation expectations, and (in some cases) more demanding payment execution will follow in the months ahead. The EU listing process is designed less to “name and shame” and more to encourage positive change through cooperation and dialogue, but once a jurisdiction is placed on Annex I, EU Member States implement “defensive measures” that can materially affect tax treatment, withholding obligations, and audit intensity for Vietnam-linked transactions.

      What the EU decision does (and does not) do

      The EU blacklist is a tax‑governance instrument: it does not prohibit EU businesses from importing goods from Vietnam or procuring Vietnamese services, and it does not alter Vietnam’s domestic tax regime, corporate income tax rules, withholding tax framework, or investment policies.

      At the same time, the EU can deepen cooperation with Vietnam on the political and economic track while still applying tax‑governance pressure through listing mechanisms, so businesses should be prepared for a “partnership plus scrutiny” environment rather than expecting the two to be perfectly aligned.

      In January 2026, the EU and Vietnam upgraded their relations to a Comprehensive Strategic Partnership, framed as a platform to strengthen cooperation across areas such as trade and investment, climate/energy, sustainable development and digital transformation-a signal that the blacklisting is a technical compliance tool, not a diplomatic rupture.

      The ideological paradox: a Socialist Republic on a tax-haven list

      Vietnam’s presence on the blacklist is striking when viewed in its broader political context. The EU blacklist was conceived after major tax-transparency scandals (the Panama Papers and LuxLeaks) to address jurisdictions that facilitate offshore structures or fail to meet information-exchange standards. In the Western imagination, “tax haven” connotes liberal microstates or offshore centres, yet Vietnam, governed by a Communist Party, now sits on the same list. This reflects the reality of Vietnam’s hybrid economic model: politically socialist, but economically pragmatic since the Đổi Mới reforms of the late 1980s, with selective tax incentives for special economic zones, high-tech investments and priority sectors that, in certain cases, can significantly reduce the effective tax burden for foreign investors. The EU’s concern is not Vietnam’s headline corporate tax rate but rather-at this stage-the absence of adequate exchange-of-information infrastructure, though the architecture of its preferential regimes has also attracted scrutiny in the past. The listing is a technical compliance issue, not an ideological one. 

      Why Vietnam was added: the listing criteria and timeline

      Vietnam has been subject to EU scrutiny since the very first iteration of the EU list in December 2017, when it was placed in Annex II (the “grey list”) alongside jurisdictions that have committed to reform but are not yet fully compliant. In October 2025, Vietnam was removed from Annex II after fulfilling its commitments on country-by-country reporting (CbCR), and appeared, at that point, to be on the path to full compliance. However, shortly afterwards-in November 2025-the OECD Global Forum published its peer review and rated Vietnam “Non-Compliant” with respect to the standard on Exchange of Information on Request (EOIR), a separate compliance area from CbCR, finding that further reforms remained outstanding and that improvements in the CbCR exchange framework were not expected before 2027. This OECD finding directly triggered the February 2026 move to Annex I-an escalation from the grey list to the blacklist, bypassing any intervening period of full compliance.

      The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), requiring compliance with AEOI and EOIR standards and membership of the Multilateral Convention on Mutual Administrative Assistance in Tax Matters; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.

      Vietnam’s response and the path to delisting

      Vietnam’s Ministry of Foreign Affairs responded publicly within days of the listing, defending the country’s tax transparency record and stating that the government is implementing a national action plan to follow OECD recommendations and expand tax cooperation with partners including the EU. Vietnam expressed readiness to engage with European authorities to ensure more objective and comprehensive assessments, and to promote cooperation for shared development and prosperity. Practitioner commentary suggests a concrete roadmap is achievable: with legislative amendments (decrees and circulars on EOIR procedures), the establishment of a dedicated EOIR unit, publication of enforcement statistics, and active technical engagement with the EU Code of Conduct Group from now through September 2026, Vietnam could realistically target removal from Annex I at the next EU review cycle in October 2026, although this timeline is ambitious and delisting is by no means guaranteed. The key point for EU businesses is that, while the listing may be relatively short-lived if Vietnam acts decisively, companies should not delay compliance preparations in reliance on early delisting-a proportionate, risk-based response is more appropriate than a wholesale restructuring of Vietnam-linked supply chains.

      How different payment types are affected in practice

      Goods (imports) are often the most straightforward in substance terms because there is usually a clear chain of documents: purchase orders, shipping documents, customs import paperwork, delivery notes, inspection/acceptance records and matching invoices.

      The risk uplift for goods is typically not about whether the purchase is real, but whether the overall supply chain and pricing remain coherent under scrutiny-for example, whether margins and intercompany arrangements around the import flow make commercial sense and are consistently documented.

      Services (outsourcing, consulting, IT development, marketing, support) tend to attract more questions because “what was delivered” is harder to evidence than a shipped product.

      If your EU entity pays a Vietnamese provider for services, expect to need a well‑organised evidence pack: a clear scope of work, time records or milestones, deliverables (reports, code repositories, tickets), acceptance sign‑offs, and a pricing rationale that matches the level of skill and effort involved.

      Royalties and IP-related payments (software licences, trademarks, know‑how, technology access) are particularly sensitive because they combine valuation complexity with cross‑border tax characterisation questions.

      Expect pressure-testing of (i) who truly owns and controls the IP, (ii) the contract chain and sublicensing rights, (iii) how the royalty rate was set using benchmarking or comparable arrangements, and (iv) whether the payment is genuinely for IP rather than a disguised service fee.

      Intragroup charges (management fees, shared services, cost recharges) are commonly the first area where tax authorities and counterparties ask for “benefit” evidence and allocation logic.

      Where Vietnam sits inside a group value chain, be ready to show why a charge exists, how it was calculated, how the recipient benefited, plus consistent intercompany agreements and transfer pricing support.

      Financing and treasury flows (interest, guarantees, cash pooling, factoring, trade finance) trigger the most intensive technical review because they involve both tax outcomes and financial crime/compliance sensitivities.

      Even where the structure is legitimate, these flows are more likely to be escalated internally for enhanced review and may require more supporting documentation before execution.

      How European banks may respond (and what that looks like in practice)

      Banks in the EU operate under a risk‑based approach to financial crime and compliance, and they may apply de-risking decisions, meaning they can choose to restrict or exit relationships or transaction types they view as exceeding their risk appetite or being operationally too costly to monitor. EU supervisory frameworks acknowledge that de-risking exists and call for proportionate, evidence-based risk assessments rather than indiscriminate blanket exclusions, but in practice banks have significant discretion.

      For an EU company initiating a bank transfer to a Vietnamese counterparty, the following discretionary measures can arise in practice, even where the payment is entirely lawful and commercially routine.

      A bank can pause execution and request additional documents before releasing funds, seeking comfort on the purpose and legitimacy of the transaction under its internal controls.

      Typical requests include the underlying contract or statement of work, invoices, proof of delivery or performance, an explanation of business purpose, and information on the beneficiary’s beneficial ownership or corporate structure.

      A bank can route the payment through manual review queues rather than straight-through processing, particularly for first-time beneficiaries, unusually large amounts, or payments with vague narratives that do not clearly describe the purpose.

      This creates operational knock-ons: late supplier settlement, goods held pending payment confirmation, or service suspension where the vendor operates on strict payment triggers.

      A bank can impose internal conditions as part of its customer-specific risk controls-for example requiring richer payment details, stricter invoice descriptors, or pre-approval workflows for Vietnam-corridor payments.

      A bank can decline to process specific transactions or decide to exit certain corridors, client types, or business models entirely as a risk-management choice. German financial institutions are described as applying enhanced due diligence, requiring full transparency of transaction purpose and ownership for Vietnam-linked payments.

      Where a payment is declined, the practical solution is often to adjust the execution setup-alternative banking channel, revised documentation pack, or modified payment mechanics-while keeping the underlying commercial relationship intact.

      EU companies are advised to develop a “Banking Compliance Pack” for Vietnam-corridor payments: a pre-assembled set of documents (contract, invoice, proof of delivery/performance, business rationale memo, and beneficial ownership information) that can be submitted proactively or in response to bank queries within hours rather than days.

      Non-tax defensive measures and EU funding implications

      Beyond tax measures, being on the EU blacklist triggers non-tax consequences that affect Vietnam’s economic relationship with the EU more broadly. EU investment programmes cannot channel funding through entities located in Vietnam, because using such an entity contradicts the core legal purpose of these funds, which are designed to promote good governance, transparency, and the fight against illicit financial flows. Affected funds include the European Fund for Sustainable Development (EFSD/NDICI), which de-risks major investments in areas like energy and digital; the InvestEU programme (which replaced the former EFSI); and the External Lending Mandate (ELM), which provides EIB loans for major infrastructure outside the EU. In addition, the General Framework for STS securitisation imposes separate restrictions on the use of entities in blacklisted jurisdictions within securitisation structures. For Vietnamese entities and their EU partners working on donor-funded or ESG-driven projects, this can be a significant constraint, as subsidiaries and other businesses in Vietnam may be cut off from these sources of EU financing.

      DAC6 reporting and public country-by-country reporting

      Cross-border arrangements involving Vietnam are now subject to heightened DAC6 scrutiny. In particular, Hallmark C.1(b)(ii) may be triggered where a deductible cross-border payment is made by an EU-based associated enterprise to a tax resident in Vietnam, subject to Member State-specific implementation of the main benefit test and other conditions. Large multinationals (consolidated revenue of EUR 750 million or more in each of the last two fiscal years) must also prepare and publicly disclose a Public Country-by-Country Report. Under the EU Public CbCR Directive, Vietnam activities must be reported separately-not aggregated as “Rest of the World”-disclosing a list of all consolidated subsidiaries, description of activities, number of full-time equivalent employees, revenues (including related-party revenue), profit or loss before tax, income tax accrued and paid, and accumulated earnings. For FY 2025 and FY 2026, Vietnam information is already reportable separately by affected multinationals.

      Country notes (alphabetical)

      Belgium: Belgium applies non-deductibility of costs, CFC rules, and participation exemption limitations linked to both the EU list and certain domestic criteria. A critical Belgian-specific rule is the reporting obligation for payments made to entities in blacklisted jurisdictions where the aggregate of such payments exceeds EUR 100,000 in the taxable period; once this threshold is met, each such payment must be reported in the annual tax return, and any payment that is not reported, or that cannot be justified on specific grounds, is not deductible. Belgium follows a dynamic approach to the EU list, meaning EU list updates take effect automatically without a further domestic step. For Belgian payers, immediate practical priorities are: (i) identifying all Vietnam-linked payment streams above EUR 100,000, (ii) ensuring the reporting mechanism in the annual tax return is in place, and (iii) building the justification file for each reported payment.

      France: France applies all four defensive measures-non-deductibility of costs, CFC rules, withholding tax, and participation exemption limitation-but via a national decree-based list that refers to the EU list while also applying additional French domestic criteria. France follows a static approach, updating its domestic non-cooperative state list through an annual Decree in the Official Journal, with tax consequences applying from the first day of the third month following publication. The last French update took place in April 2025, and at the time of writing (May 2026) no subsequent decree incorporating Vietnam has been published. A further update is expected imminently and will likely include Vietnam. Once Vietnam appears on the French list, key measures include: a 75% withholding tax on interest, royalties, dividends and service fees (counterevidence possible); denial of the participation exemption (counterevidence possible for jurisdictions meeting certain criteria); denial of deductibility of interest, royalties and service fees (counterevidence possible); and a stricter CFC rule under which the burden of proof is reversed and foreign withholding taxes cannot be credited against French CFC income. French payers should monitor the next French decree closely and prepare counterevidence files now so they are ready the moment the decree is published.

      Germany: Germany applies all four defensive measures through the Tax Haven Defence Act (Steueroasen-Abwehrgesetz, StAbwG), linked to the EU list via a Tax Haven Defence Ordinance that is updated once per year, typically at year-end taking into account the October EU list update. The expected sequence for Vietnam is: December 2026-amendment to the Tax Haven Defence Ordinance to incorporate Vietnam; from 2027 (Year 1)-stricter CFC rules and extended withholding tax of 15% (plus a 5.5% solidarity surcharge) apply to income from financing relationships, insurance or reinsurance services, legal and advisory services, and trading of goods and services; from 2029 (Year 3)-denial of the participation exemption activates; from 2030 (Year 4)-denial of deductible business expenses activates. Importantly, Germany’s extended withholding tax can override double tax treaties. The multi-year ramp-up means that immediate German impacts are CFC scrutiny and withholding tax friction on specific payment types, while the broader expense deduction denial will only bite from 2030 onwards-giving German payers time to prepare, but making early documentation investment worthwhile.

      Italy: Italy uses the EU list for monitoring and deductibility purposes under Article 110 TUIR: costs connected with counterparties in Annex I jurisdictions are generally deductible up to “normal value,” while amounts above normal value require evidence of an effective economic interest, and all such costs must be separately indicated in the annual income tax return (Modello REDDITI). Italy’s framework is directly triggered by the EU list, meaning Vietnam’s Annex I status is effective for Italian purposes from the publication of the Council conclusions in the EU Official Journal, without any further domestic implementing step being required.

      For Italian payers, service costs, royalties, and intragroup charges to Vietnam are the most sensitive categories: robust documentation of deliverables, pricing and economic rationale is essential, and accounting teams need to ensure they can cleanly isolate Vietnam-linked costs in the year-end reporting workflow.

      Malta: Malta follows a dynamic approach to the EU list, meaning Vietnam’s Annex I status takes effect automatically in Malta’s tax framework. Malta applies a limitation of the participation exemption on dividend income derived from a participating holding in a body of persons that has been resident in a jurisdiction on the EU list for a minimum period of three months during the year immediately preceding the year of assessment, subject to a counter-evidence exception based on “people functions.” Malta does not apply non-deductibility, CFC, or withholding tax defensive measures against EU-listed jurisdictions as primary tools, so the main Malta-specific concern for holding and investment structures is participation exemption eligibility and substance evidence. For Malta-based groups, the practical response is to keep board materials, contracts, and commercial rationale tightly aligned, and to prepare for more intensive counterparty due diligence (beneficial ownership, substance, and tax residency) from EU customers and financial institutions.

      Netherlands: The Netherlands applies a 25.8% conditional withholding tax on interest, royalties, and (since 1 January 2024) dividends paid to related entities in EU-listed jurisdictions or low-tax jurisdictions, as well as CFC rules with counterevidence possible. The Netherlands follows a static approach: the list applicable for a tax year is based on the EU list as it stood at the end of the preceding year, using the October update as the reference. This means the Dutch 2027 Regulation will include Vietnam only if Vietnam remains on the EU list after the October 2026 review cycle. No withholding tax consequences arise for Dutch payers immediately in 2026 as a direct result of Vietnam’s February 2026 listing, but the October 2026 review date is critical: if Vietnam remains listed, Dutch conditional withholding tax obligations will activate from 1 January 2027. Dutch payers with intragroup dividend, interest, and royalty flows to Vietnam should use the current window to restructure documentation and pricing support and to assess whether existing double tax treaty protections remain effective in light of the conditional WHT mechanics.

      Spain: Spain does not mechanically mirror the EU list, but operates its own domestic list of non-cooperative jurisdictions, which is updated separately and can include or exclude jurisdictions differently from Annex I. Spain applies a static approach, with the list specified in law. The practical implication is that the Spanish domestic tax consequences of Vietnam’s listing depend on whether and when Spain updates its domestic list to include Vietnam, rather than arising automatically from the EU Council’s February 2026 decision. For Spain-based procurement and finance teams, do not assume a one-to-one mapping between EU-list status and Spanish domestic tax outcomes, but do treat Vietnam-linked transactions as higher-scrutiny items from an audit and counterparty due diligence perspective, and invest in cleaner contracting, invoice narratives, and performance evidence for services, royalties, and intragroup charges.

       

      Practical next steps for EU companies

      1. Map exposures: Identify and quantify all payment streams relating to Vietnamese entities, broken down by payment type (goods, services, royalties, intragroup charges, financing).
      2. Understand your Member State’s rules: Confirm which defensive measures apply in the relevant EU payer jurisdiction, when they take effect (immediately or staged), whether the jurisdiction follows the EU list dynamically or statically, what relief conditions exist, and what documentation is required.
      3. DAC6 readiness: Assess whether Vietnam-linked arrangements trigger DAC6 reporting obligations (particularly deductible cross-border payments between associated enterprises) and ensure reporting infrastructure is in place.
      4. Transfer pricing and substance: Validate intercompany services, royalties and financing arrangements by reassessing pricing, benefit tests and contractual terms; strengthen contemporaneous documentation before year-end.
      5. Public CbCR messaging: If within scope, assess public CbCR disclosure implications for Vietnam operations and align tax, legal, ESG and investor-relations communications accordingly.
      6. Vendor due diligence: Implement or strengthen due diligence on Vietnamese counterparties, including tax residence evidence, beneficial ownership documentation, and substance and economic activity confirmation.
      7. Banking compliance pack: Build a pre-assembled documentation pack for Vietnam-corridor payments (contract, invoice, proof of delivery/performance, business rationale, beneficial ownership information) to address bank queries within hours rather than days.
      8. Monitor the October 2026 review: Track Vietnam’s progress on EOIR reforms and the EU Code of Conduct Group’s October 2026 review cycle. If Vietnam is removed from Annex I in October 2026, Member States that follow a static approach (Germany, Netherlands) will not apply defensive measures to Vietnam in their 2027 rules; France, which also follows a static approach but applies additional domestic criteria, may nonetheless retain Vietnam on its own non-cooperative state list even after EU delisting. The October 2026 outcome is therefore commercially significant for medium-term planning.
      9. Embed internal governance: Install jurisdiction-risk gateways in approval workflows for new entities, contracts, loans, and IP arrangements involving Vietnam, to ensure proper sign-off and documentation from inception.

      Under French Law, franchisors and distributors are subject to two kinds of pre-contractual information obligations: each party must spontaneously inform their future partner of any information they know is decisive to their consent. In addition, for certain contracts – i.e a franchise agreement – there is a duty to disclose a limited amount of information in a document. These pre-contractual obligations are mandatory rules of public policy. Thus, these two obligations apply simultaneously to the franchisor, distributor or dealer when negotiating a contract with a partner.

      Takeaways

      • The information required by the DIP must be fully completed and updated ;
      • The information not required by the DIP but provided by the franchisor must be carefully selected and sincere;
      • Franchisee must be given the opportunity to request additional information from the franchisor;
      • Franchisee’s experience in the economic sector enables the franchisor to considerably limit its exposure to the risk of contract cancellation due to a defect in the franchisee’s consent;
      • Franchisor must keep the proof of the actual disclosure of pre-contractual information (whether mandatory or not).
      • The general information obligation under common law (Article 1112-1 of the French Civil Code) may apply concurrently with the special disclosure obligation provided for under Article L. 330-3 of the French Commercial Code.

      General duty of disclosure for all contractors

      What is the scope of this pre-contractual information?

      This obligation is imposed on all counterparties, for any kind of contract. Indeed, article 1112-1 of the Civil Code states that:

      (§. 1) The party who knows information of decisive importance for the consent of the other party must inform the other party if the latter legitimately ignores this information or trusts its counterparty.

      (§. 3) Of decisive importance is the information that is directly and necessarily related to the content of the contract or the quality of the parties. »

      This obligation applies to all contracting parties for any type of contract.

      French courts have ruled that this general information obligation may apply concurrently with the special disclosure obligation under Article L. 330-3 of the French Commercial Code (see below), answering the question in the affirmative (Paris Court of Appeal, 27 March 2024, no. 22/12665). The scope of the latter has however, been defined by the French Supreme Court (« Cour de cassation ») : only information bearing a direct and necessary link with the subject matter of the contract or the qualities of the parties is subject to the disclosure obligation (Cass. com., 14 May 2025, no. 23-17.948).

      Who bears the burden of proof?

      The burden of proof rests on the person who claims that the information was due to him. He must then prove (i) that the other party owed him the information but (ii) did not provide it (Article 1112-1 (§. 4) of the Civil Code)

      Special duty of disclosure for franchise and distribution agreements

      Which contracts are subject to this special rule?

      French law requires (art. L.330-3 French Commercial Code) the provision of a pre-contractual information document (in French “DIP”) and the draft contract, by any person:

      • which grants another person the right to use a trade mark, trade name or sign,
      • while requiring an exclusive or quasi-exclusive commitment for the exercise of its activity (e.g. exclusive purchase obligation). The quasi-exclusive nature of the commitment is assessed on a case-by-case basis by French courts, independently of the 80% purchase threshold provided for under EU Regulation 2022/720, which is treated merely as an indicative reference.

      Concretely, DIP must be provided, for example, to the franchisee, distributor, dealer or licensee of a brand, by its franchisor, supplier or licensor as soon as the two above conditions are met. French courts have moreover recently had occasion to confirm that the scope of the DIP obligation is not limited to franchise agreements but extends, in particular, to dealership agreements, provided the above-mentioned conditions are met (Paris Court of Appeal, 22 May 2024, no. 22/08672).

      When the DIP must be provided?

      DIP and draft contract must be provided at least 20 days before signing the contract, and, where applicable, before the payment of the sum required to be paid prior to the signature of the contract (for a reservation).

      What information must be disclosed in the DIP?

      Article R. 330-1 of the French Commercial Code requires that DIP mentions the following information (non-detailed list) concerning:

      • Franchisor (identity and experience of the managers, career path, etc.);
      • Franchisor’s business (in particular creation date, head office, bank accounts, history of the development of the business, annual accounts, etc.);
      • Operating network (members list with indication of signing date of contracts, establishments list offering the same products/services in the area of the planned activity, number of members having ceased to be part of the network during the year preceding the issue of the DIP with indication of the reasons for leaving, etc.);
      • Trademark licensed (date of registration, ownership and use);
      • General state of the market (about products or services covered by the contract) and local state of the market (about the planned area) and information relating to factors of competition and development perspective. With respect to the local market, the French Supreme Court (« Cour de cassation ») has held that the franchisor is not required to conduct a market study, but that if one is provided, it must be accurate and verifiable (Cass. com., 18 Oct. 2023, no. 22-19.329).;
      • Essential element of the draft contract and at least: its duration, contract renewal conditions, termination and assignment conditions and scope of exclusivities;
      • Financial obligations weighing in on contracting party: nature and amount of the expenses and investments that will have to be incurred before starting operations (up-front entry fee, installation costs, etc.).

      Beyond the exhaustiveness of the information required under the aforementioned provision, the DIP is subject to a qualitative standard. All information provided — including information provided spontaneously — must be accurate and truthful to ensure that the prospective network member’s consent is fully informed and free from any defect.

      How to prove the disclosure of information?

      The burden of proof for the delivery of the DIP rests on the debtor of this obligation: the franchisor (Cass. Com., 7 July 2004, n°02-15.950). The ideal for the franchisor is to have the franchisee sign and date his DIP on the day it is delivered and to keep the proof thereof.

      The clause of contract indicating that the franchisee acknowledges having received a complete DIP does not provide proof of the delivery of a complete DIP (Cass. com, 10 January 2018, n° 15-25.287).

      The franchisor is subject to a duty to update the DIP until the contract is signed

      In a ruling dated 26 June 2024 (no. 23-14.085 PB), the French Supreme Court held that formal compliance of the DIP at the time of its delivery is not sufficient to exonerate the franchisor from all pre-contractual liability. This position was confirmed by a subsequent ruling of 4 December 2024 (no. 23-16.684).

      These two decisions appear to establish a duty of ongoing updates incumbent upon the network head throughout the entire period between the delivery of the DIP and the execution of the contract. Where significant events occur during that interval — insolvency proceedings affecting network members, major litigation, or structural changes to the network — the network head is required to proactively inform the prospective member. The court then examines whether the failure to disclose such information was liable to distort the candidate’s assessment of the network and, consequently, to vitiate his consent (Cass. com., 26 June 2024, op. cit.).

      A franchisor may therefore not shelter behind the initial regularity of the DIP to discharge its disclosure duty where the network’s situation has materially changed prior to the signing of the contract.

      Sanction for breach of pre-contractual information duties

      Criminal sanction

      Failing to comply with the obligations relating to the DIP, franchisor or supplier can be sentenced to a criminal fine of up to 1,500 euros and up to 3,000 euros in the event of a repeat offence, the fine being multiplied by five for legal entities (article R.330-2 French commercial Code).

      Cancellation of the contract for deceit

      The contract may be declared null and void in case of breach of either article 1112-1 of the French Code civil or article L. 330-3 of the French Code de commerce. In both cases, failure to comply with the obligation to provide information is sanctioned if the applicant demonstrates that his or her consent has been vitiated by error, deceit or violence. In this respect, courts conduct a concrete, case-by-case assessment, taking into account in particular the professional experience and personal due diligence of the distributor: a sophisticated candidate will face greater difficulty in establishing deceit, and his experience in the relevant sector may be sufficient to exonerate the franchisor (Paris Court of Appeal, div. 5 – ch. 11, 26 Apr. 2024, no. 21/13205), even where the information provided was incomplete or inaccurate (Paris Court of Appeal, 20 Jan. 2021, no. 19/03382).

      The path is therefore narrow for the franchisee: he cannot invoke error concerning profitability when it is he who draws up his plan, and even when this plan is drawn up by the franchisor or based on information drawn up and transmitted by the franchisor, the experience of the franchisee who knew the local market may exonerate the franchisor.

      Regarding deceit, Courts strictly assess its two conditions which are:

      • (a material element) the existence of a lie or deceptive reticence (article 1137 French Civil Code), and
      • (an intentional element) the intention to deceive his counterparty (article 1130 French Civil Code).

      Where applicable, the parties must return to the state they were in before the contract.

      Damages

      Although the claims for contract cancellation are subject to very strict conditions, it remains that franchisees/distributors may alternatively obtain damages on the basis of tort liability for non-compliance with the pre-contractual information obligation, subject to proof of fault (incomplete or incorrect information), damage (loss of opportunity of not contracting or contracting on more advantageous terms) and the causal link between the two.

      From Reporting to Governance and Risk Allocation

      Environmental, Social and Governance (ESG) considerations are playing an increasingly influential role in how businesses operate, invest, and manage risk, especially within the European Union, where corporate sustainability and responsibility regulation have been on the agenda in recent years.

      With the adoption of the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD), many companies anticipated a significant shift in compliance. Since then, the EU has introduced simplification measures to streamline reporting and due diligence obligations, reduce the administrative burden, and improve proportionality, particularly for small and medium-sized enterprises (SMEs), while maintaining the core sustainability objectives.

      While opinions may differ regarding the evolution of environmental, social, and governance (ESG) in EU regulation and the subsequent postponements of reporting obligations, regulatory developments appear to have, in practice, supported a shift in perspective. Sustainability is no longer viewed solely as a reporting requirement, but increasingly as a matter of governance, strategy, and risk allocation. This development is welcome, as the regulatory framework’s underlying objective is to advance the green transition, which in turn requires a change in how companies integrate sustainability into their decision-making and operations.

      This focus on sustainability influences businesses of all sizes, including SMEs. Even companies not directly subject to the CSRD or CSDDD anticipate that ESG requirements will be passed down through the supply chain. Many non-reporting SMEs are already embedding sustainability practices, and this trend is likely to continue. In other words, sustainability policies are already affecting companies well before any formal reporting obligations kick in.

      Environmental, Social, and Governance in Contract Architecture

      One of the key means of implementing environmental, social, and governance obligations and objectives in day-to-day business operations is through commercial contracts and the requirements and commitments embedded in them.

      Even where a company itself is not directly subject to extensive reporting or due diligence obligations, corporate sustainability and responsibility expectations flow through the market via contractual relationships. Larger undertakings within the scope of CSRD and, in due course, the CSDDD require contractual assurances, information rights, and cooperation from their business partners, including SMEs operating within their supply chains. As a result, corporate sustainability and responsibility become a question of contractual architecture. Companies must consider not only price mechanisms, liability caps and termination triggers, but also how environmental, social and governance risks and obligations are addressed and allocated between the parties through legally enforceable contractual terms.

      Translating Policies into Binding Obligations

      A typical starting point is the incorporation of a code of conduct or sustainability policies into commercial contracts, often by reference and through an express obligation on the contracting party to comply with them. From a legal standpoint, this raises important drafting questions. Many codes are drafted as high-level public statements. When such policies are converted into contractual commitments, their wording, scope, and hierarchy relative to the main agreement require careful consideration. The obligations must be sufficiently clear to define the parties’ expectations, coherent with other contractual provisions, and proportionate to the commercial relationship. The obligations must also be capable of practical implementation and effective monitoring in the context of the agreement.

      In practical terms, this may mean requiring the supplier to comply with specific labour standards, maintain documented environmental management procedures, report on emissions data, ensure traceability of key raw materials, or allow reasonable access for audits. Clearly defining what is expected, how compliance is demonstrated, and what consequences follow from non-compliance is essential for the clause to function effectively. Otherwise, clauses that appear comprehensive in theory and ambitious in scope may offer limited enforceability in practice, and their impact may remain marginal if compliance cannot be effectively monitored and verified. If policies are not properly translated into binding and operational obligations, the company risks a mismatch between what it promises publicly and what is actually required under its contracts. This may undermine consistency, weaken risk management, and expose the company to reputational and governance risks if its own stated principles cannot be enforced within its supply or distribution chain.

      As part of this process, companies must also consider the protection of trade secrets and confidential information. For example, broad audit or data-reporting obligations may raise concerns about sensitive business information. Contractual terms should balance transparency with the need to protect legitimately proprietary data. Clauses such as confidentiality agreements or carve-outs for trade secrets can be used to ensure that sharing ESG-related information does not compromise confidential business information or competitive advantages.

      Environmental, Social and Governance Clauses Across Different Contract Types

      Besides codes of conduct and sustainability policies, environmental, social and governance-related clauses increasingly take more tailored and transaction-specific forms. In shareholder agreements, sustainability objectives may be reflected in governance structures or even linked to financial outcomes, for example by aligning dividend policies or incentive mechanisms with agreed climate targets. In employment contracts, obligations may extend beyond general compliance and include participation in corporate sustainability training programmes or adherence to internal sustainability guidelines as part of performance expectations.

      In supply and manufacturing agreements, environmental, social and governance provisions may address traceability of raw materials, emissions reporting, waste management, energy efficiency standards or the right to replace a supplier if its environmental practices materially conflict with the contracting party’s sustainability commitments. Such contractual mechanisms increasingly affect SMEs operating as suppliers, as ESG expectations pass through the supply chain.

      Construction contracts often include detailed requirements regarding material selection, lifecycle impacts, carbon footprint calculations and recycling or waste reduction procedures. For example, in Finland, legislation imposes low-carbon and energy efficiency requirements for new buildings, and a party undertaking a construction project is subject to mandatory reporting obligations relating to construction and demolition waste. These statutory requirements are typically reflected and implemented in the relevant project and construction contracts.

      Across these different contract types, the practical significance is consistent. Environmental, social and governance considerations move from the level of general policy into legally enforceable obligations tailored to each specific legal relationship. Contracts function as a mechanism for allocating responsibility, managing compliance risk and aligning commercial incentives with sustainability objectives.

      Proportionate Monitoring and Audit Rights

      In the contractual implementation and monitoring of environmental, social and governance obligations, audit and information rights play a central role. They are closely linked to effective oversight and form an integral part of a coherent contractual framework. In practice, companies typically seek access to relevant data from their business partners and, where appropriate, establish inspection or audit rights to enable meaningful monitoring and verification, whether conducted directly by the company or, commonly, by an independent expert appointed for that purpose.

      However, such arrangements must remain balanced. Overly burdensome provisions may needlessly disrupt day-to-day operations and reduce the willingness to cooperate, particularly for SMEs with limited administrative capacity. By contrast, well-designed mechanisms that balance transparency with confidentiality and operational feasibility are more defensible and more likely to function effectively in practice.

      Contractual Remedies

      As a general principle, the consequences of a breach are determined by the terms agreed between the parties. In practice, the parties will typically first seek to resolve the matter through discussion and good faith negotiations, allowing the non-compliant party an opportunity to clarify the situation and implement corrective actions within a reasonable timeframe. If negotiations do not lead to a resolution, it may be appropriate to proceed to stronger measures, such as contractual penalties, indemnification obligations, price adjustments, temporary suspension rights or other agreed sanctions, applied in light of the nature and severity of the breach.

      The contract should clearly define what constitutes a breach, how it is assessed and what remedies are available in each scenario. Clear and proportionate step-by-step remedy structures enhance legal certainty, reduce the risk of disputes and ensure that material or repeated breaches may trigger more significant consequences, including termination where justified.

      Strategic and Voluntary Environmental, Social and Governance Commitments

      In the current EU landscape, implementing ESG considerations in commercial contracts is no longer simply a matter of reacting to directives. It is a broader exercise in risk management and corporate governance. Even as the implementation details of the directives may continue to evolve, market expectations, financing conditions and reputational considerations remain key drivers of sustainability integration.

      In addition, some companies choose to position themselves as frontrunners in sustainability for strategic and reputational reasons. They may therefore incorporate voluntary environmental, social and governance mechanisms and requirements into their contracts that go beyond, or are not directly derived from, binding directives. By doing so, they signal to investors, customers and other stakeholders that sustainability is treated as a core business priority rather than merely a compliance obligation.

      At the same time, it is important to recognise the practical limits of such commitments. Ambitious sustainability requirements may be more challenging for SMEs with limited financial and administrative resources. Meeting extensive reporting, certification or traceability standards can require investments in systems, personnel and external expertise. If contractual expectations are not calibrated to the size and capacity of the counterparty, they may limit the ability of SMEs to participate in certain supply chains. A balanced and proportionate approach helps ensure that sustainability objectives remain achievable and commercially workable across the contractual chain.

      Conclusion

      For legal practitioners, the central task is not to increase the number of environmental, social and governance clauses as such, but to ensure their quality, coherence and practical relevance. The objective is to design contractual mechanisms that are proportionate, enforceable and aligned with the company’s actual risk profile, industry context and sustainability priorities. Commercial contracts remain one of the most concrete tools for translating sustainability strategy into operational practice. Moreover, every contract lawyer should understand and apply key sustainability principles in their work, ensuring that ESG commitments become integral to legal advice and contract drafting.

      The Strait of Hormuz is likely the most strategically important point for the global oil trade. In fact, approximately 20% of the world’s oil and gas passes through this narrow passage between the Gulf of Oman and the Persian Gulf every day.

      Following the outbreak of war in the region, the impact on energy markets was almost immediate: oil prices quickly rose above $100 per barrel, and it is unclear how high they may climb in the coming weeks and months. As a result, transportation, production, and procurement costs are rising across industrial supply chains in many sectors.

      For many companies engaged in international trade, this phenomenon creates a very real problem. Contracts signed months (or years) earlier—perhaps at a fixed price—must be fulfilled in a completely different economic context.

      A manufacturer that sells goods for delivery in six or twelve months may find itself producing and shipping at much higher energy costs, while the price agreed upon with the customer remains unchanged.

      This is a situation that recurs cyclically, for various reasons: from the COVID-19 pandemic to the subsequent raw materials crisis, and on to current geopolitical tensions.

      When the increase in costs is so sudden and significant, a question inevitably arises: must the contract still be performed under the original terms, or is it possible to suspend or renegotiate the agreement to adapt it to the new circumstances?

      The answer depends on several factors: first and foremost, on what the parties have (or have not) provided for in the contract, but also on the law applicable to the relationship and on the interpretation that judges or arbitrators may give to the rules in the event of a dispute.

      Force Majeure and Hardship: Two Different Concepts

      When extraordinary events occur—such as a war, an energy crisis, or the disruption of a trade route—many operators immediately invoke force majeure. However, in most cases, these situations fall instead under the category of hardship.

      It is therefore essential to distinguish between these two situations.

      When an Event Constitutes Force Majeure

      Force majeure applies to cases where an extraordinary and unforeseeable event makes it impossible to perform the contract.

      The characteristics of the grounds for exemption from liability depend on the law applicable to the commercial relationship, but generally require:

      • unpredictability of the event;
      • the event being beyond the affected party’s control;
      • the impossibility of avoiding or overcoming the event through reasonable efforts.

      Typical examples include:

      • orders from authorities requiring the suspension of production
      • embargoes or export bans
      • logistical disruptions caused by war

      In these situations, performance is not merely more costly: it becomes objectively impossible. The consequence is that the party unable to perform is generally exempt from liability for the duration of the event.

      Hardship

      The situation is different when performance of the contract remains possible but becomes economically much more burdensome.

      The concept of hardship is generally based on four prerequisites:

      1. an event occurring after the conclusion of the contract
      2. unpredictability and extraordinary nature of the event
      3. a substantial alteration of the economic balance of the contract
      4. excessive burden of performance, but not impossibility

      A sharp increase in the price of oil, gas, or other raw materials often falls into this category.

      Goods can be produced and delivered, but doing so may entail costs far higher than those anticipated when the contract was signed.

      The ripple effect along the international supply chain

      In global industrial supply chains, the same goods are often the subject of a series of consecutive contracts.

      The manufacturer sells to a trader, who sells to a processing company, which resells to an importer in another country, who in turn distributes the product to the end market.

      When a hardship event occurs—such as a sharp rise in energy prices—the effect tends to ripple throughout the entire supply chain.

      The first party affected by the cost increase will try to pass the increase on to its contractual counterpart, who, in turn, will find themselves in the same situation with the next link in the chain.

      The risk is clear: one of the operators in the middle of the chain may face increased upstream costs without being able to pass them on downstream.

      This is one of the most common problems in international supply chains.

      What happens if there is no clause regarding price fluctuations

      In commercial practice, it often happens that parties operate on the basis of orders and order confirmations without a formal written contract, or that a contract exists but contains no provisions regarding price fluctuations or hardship.

      In such cases, when costs increase sharply, it is necessary to determine which law applies to individual sales contracts across the supply chain.

      This can lead to very different situations:

      • one law may allow for price revision or termination of the contract
      • another law aplicable to a second contract may not provide for equivalent remedies
      • a third contract may contain much more restrictive contractual clauses

      The practical result is that an operator in the middle of the chain may face a price increase from their supplier without being able to pass it on to the customer.

      A Common Legal Framework: The Vienna Convention on the International Sale of Goods (CISG)

      Fortunately, many international sales contracts are governed by the 1980 Vienna Convention on the International Sale of Goods (CISG).

      The convention has been ratified by 97 countries, including Italy and most major trading partners, such as the U.S., Canada, China, Germany, France, Spain, etc.

      The central provision is Article 79, according to which a party is not liable for non-performance if it proves that the non-performance is due to an impediment:

      • beyond its control
      • unforeseeable at the time of the conclusion of the contract
      • unavoidable or insurmountable

      Traditionally, this provision has been applied to cases of force majeure.

      In recent years, there has been debate over whether it can also be applied to cases of hardship, but international case law tends to be very cautious.

      International case law on Hardship

      Court decisions reflect a rather strict approach.

      In some cases, even very significant increases in raw material costs have not been considered sufficient to modify or suspend the contract.

      The reasoning is simple: those who operate professionally in international trade must take into account a certain degree of market volatility.

      Only when the increase in costs exceeds an exceptional and unforeseeable level such as to radically alter the balance of the contract can hardship be invoked.

      One of the most frequently cited cases is the Belgian Supreme Court’s decision in the Scafom case, which recognized the right to renegotiate the contract following a 70% increase in the price of steel.

      However, such cases are relatively rare.

      Generic clauses that serve no purpose

      Many contracts contain hardship clauses copied from standard templates (boilerplate).

      The problem is that these clauses often:

      • list the effects of hardship
      • but do not define when hardship actually occurs

      The result is that, when prices rise, the parties may have very different opinions on what constitutes an “exceptional” increase and whether the event in question was “unforeseeable” or not.

      The clause, therefore, does not resolve the issue, but defers it to discussion between the parties and, in the event of a failure to reach an agreement, to the courts or arbitrators.

      What criteria can define a hardship situation

      To make the clause truly effective, it is useful to establish objective parameters.

      Among the most commonly used in international contracts:

      • an increase or decrease in the price of a raw material beyond a certain threshold (±20% or ±30%)
      • an increase in transportation or logistics costs within certain limits;
      • significant fluctuations in the exchange rate beyond a specified range;
      • the introduction of tariffs or trade restrictions

      These parameters, linked to tolerance ranges, allow the parties to quickly and unambiguously identify a hardship event.

      Remedies in the Event of Hardship

      An effective clause should also address how to handle the situation.

      The most common solutions are:

      • renegotiation of the contract in good faith
      • apply an automatic price adjustment
      • appointment of an independent third-party expert to determine the new price
      • temporary suspension of the contract
      • right of withdrawal if no agreement is reached

      These tools allow the parties to manage the crisis without resorting to litigation.

      Audit of existing contracts: what to do now

      At this point, the practical question becomes: how should we manage the issue in existing business relationships?

      The first step is to conduct an audit of existing contracts with suppliers and customers.

      1. Introduce comprehensive contracts in new relationships

      If the relationships are governed solely by purchase orders and order confirmations, it is advisable to take this opportunity to draft comprehensive international sales contracts that include:

      • a hardship clause
      • warranty provisions
      • remedies for breach
      • limitations of liability

      2. Update existing contracts

      If the relationship is already governed by a contract, you should check whether a hardship clause exists.

      If not, it may be useful to propose to the other party:

      • a new contract, or
      • a contract addendum dedicated to managing price fluctuations.

      This helps prevent future conflicts and provides both parties with an effective tool to manage potential price shocks along the supply chain.

      Conclusion

      Commodity and energy crises demonstrate how exposed international contracts are to sudden changes in economic conditions. When a contract does not clearly address hardship management, the risk does not disappear; it simply shifts along the supply chain until it settles on the weakest link.

      For this reason, companies operating within international supply chains should view the hardship clause as a strategic tool for managing contractual risk. A well-drafted contract does not eliminate market volatility, but it allows the parties to address it with clear rules, reducing uncertainty and preventing disputes.

      Executive Summary

      The African Continental Free Trade Area (AfCFTA) remains one of the most ambitious integration projects in the world. Yet, several years into its operational phase, it has not (yet) delivered the structural shift many expected. A recent analysis underscores the gap between political momentum and economic reality: implementation remains uneven, the agreement is still used by only a portion of participating states, and non-tariff barriers and infrastructure deficits continue to dominate the cost of doing business across borders.  For Egypt, the opportunity is still real — but it depends less on treaty headlines and more on enabling conditions: trade logistics, customs efficiency, regulatory convergence, and competitive industrial capacity. 

      Looking Back: The Promise of a Single African Market

      When the AfCFTA was launched, expectations were understandably high. A continent-wide trade framework was supposed to reduce tariffs, facilitate trade in goods and services, and strengthen regional value chains — with the broader goal of moving African economies up the value ladder.

      In my 2022 article, I asked whether AfCFTA could become a game changer for Egypt, given Egypt’s industrial base, strategic geography, and the potential to diversify export markets beyond traditional partners. (For background, see the earlier article here”).

      The Reality Check: Intra-African Trade Remains Structurally Weak

      Several years later, the interim assessment is sobering. As the Frankfurter Allgemeine Zeitung (FAZ) recently put it, AfCFTA is not a “game changer” yet, and only about half of member states currently meet the practical prerequisites to trade under the agreement.

      A deeper reason is structural: no other world region trades so little with itself, and while statistics may undercount informal cross-border flows (especially in food), the overall picture remains unchanged.

      Trade integration cannot deliver transformative outcomes if production, logistics, and institutions do not support scale.

      Implementation Has Been Slow — and Often Symbolic

      Operationalisation did not start with full-scale liberalisation. Instead, the AfCFTA began with a pilot approach: the Guided Trade Initiative (GTI) launched in October 2022, initially with eight states, later joined by additional countries, including Nigeria and South Africa by spring 2025.

      The GTI created valuable learning effects, but it also underlined a key point: early progress was often presented through symbolic deals, while product coverage and volumes remained limited. FAZ highlights that only selected goods could be traded duty-free and that key sectors remained constrained for a long time due to missing or unresolved technical rules.

      A pilot, however, cannot substitute for full operational certainty — the kind businesses need to restructure supply chains and invest.

      Tariffs Are Not the Main Barrier — Trade Costs Are

      AfCFTA is frequently discussed in terms of tariff liberalisation. Yet, evidence suggests that the largest gains do not come from tariffs but from reducing non-tariff barriers and improving trade infrastructure.

      FAZ points to a central reality: tariffs tend to add around 20–30% to intra-African trade costs, whereas non-tariff costs can be far higher — driven by bureaucracy, lack of harmonised standards, inefficient border processes, and transport barriers.

      This is the crux: even with reduced tariffs, trade will not expand meaningfully if goods still cannot move cheaply, quickly, and predictably.

      Integration Complexity and Distributional Politics

      Africa’s integration landscape is shaped by multiple overlapping regional economic communities and trade regimes. This creates legal and administrative complexity — often described as an integration “spaghetti bowl.” FAZ notes the challenge of coordination and the continued fragmentation of rules.

      There is also a political economy dimension. Intra-African trade is heavily influenced by a small number of larger economies — and the distribution of benefits matters. FAZ highlights the dominance of major players (notably South Africa) and the concern that tariff liberalisation alone may entrench existing industrial advantages.

      Where governments expect asymmetric outcomes, resistance often takes the form of delay, narrow implementation, or persistent non-tariff barriers.

      What This Means for Egypt: The Opportunity Is Real — But Conditional

      Egypt’s strategic case for AfCFTA participation remains strong: industrial potential, geographic location, and the opportunity to access and shape growing markets. But the experience so far suggests that the treaty text alone does not generate trade flows.

      For Egypt’s private sector, the decisive factors are practical:

      • predictable and efficient customs clearance and border procedures,
      • logistics corridors and port efficiency,
      • regulatory convergence (standards, certification, compliance),
      • stable access to trade finance and payments,
      • competitive energy and production conditions for manufacturing and processing.

      AfCFTA can support these developments — but it cannot replace them.

      The “Game Changer” Pathway: What Must Happen Next

      FAZ concludes that AfCFTA will only become truly impactful if it is paired with the fundamentals: major infrastructure investment, stronger production and processing capacity, and a credible industrial policy.

      At the same time, Africa faces a classic chicken-and-egg problem: without development there is limited investment appeal; without investment there is limited development.

      For Egypt and its partners, a pragmatic strategy would be to:

      1. treat AfCFTA as a platform for real trade-cost reduction, not only tariff debates;
      2. focus on a limited number of scalable corridors and sectors where regional value chains can realistically grow;
      3. strengthen implementation capacity so that preferences become usable for firms — especially SMEs;
      4. enhance legal certainty and dispute resolution reliability for cross-border commerce.

      Conclusion

      AfCFTA remains a landmark achievement in terms of political commitment. But as of today, it has not yet been the “game changer” many hoped for.

      For Egypt, the key question is no longer whether AfCFTA is visionary — it is. The question is whether governments and businesses can translate it into lower real trade costs, higher competitiveness, and bankable cross-border transactions. If those enabling conditions improve, AfCFTA’s promise can still become commercial reality.

      After “Liberation Day,” many foreign companies offered discounts to American importers to help them offset the tariffs. A few months later, the US Supreme Court declared the „reciprocal“ tariffs unlawful, but on the same day, President Trump announced new tariffs. In this article, we provide a practical overview of how to handle various scenarios, shifting from a reactive, unstructured approach to deliberate management of price volatility and trade flows caused by the introduction, adjustment, and removal of tariffs.

      Tariff Sharing agreements

      For a long time, the question has been straightforward: who absorbs the extra customs cost? The exporter? The importer? Both? The question remains important, but today it is incomplete.

      The new scenario, in light of the recent ruling by the US Court of Justice on March 20, 2026, is: what happens if that duty is then canceled and refunded? If the cost was shared between the parties, the benefit of the refund must follow a consistent logic. In the absence of a clear agreement on this point, however, there is a risk of economic misalignment that could compromise the commercial relationship.

      Let’s imagine an Italian winery that sells its products to a US importer. Following the introduction of reciprocal duties, the parties have decided that the exporter will grant an extraordinary discount of 7.5%, explicitly motivated by the need to share the impact of the duty. The commercial relationship continues, volumes remain stable, and the importer avoids passing on the entire increase to the end customer.

      As a result of the Supreme Court ruling (or, in the future, another ruling or administrative decision), the importer obtains a refund of the duties paid during that period.

      If no formal agreements have been made on this point and the documentation refers generically to a „commercial discount“ and says nothing about reimbursement, the situation afterward may be difficult to reconstruct and, above all, could lead to commercial tension. As a result, a positive development (the cancellation of the duty and the right to reimbursement) becomes a problematic factor that jeopardizes the relationship.

      Is the exporter entitled to a refund of the discounts granted to mitigate the duties?

      In the absence of a different agreement between the parties, the right to reimbursement belongs to the party who paid the duty, i.e., in most cases, the importer. Therefore, there is a risk that the importer will enjoy a double benefit (the discount and the duty refund), while the exporter will get nothing.

      For this reason, it is essential that the parties do not limit themselves to negotiating prices and discounts, but also establish the consequences of the adoption, modification, or revocation of duties on the contract, including any refunds.

      To achieve this, the first step is to accurately classify and document the discounts granted. If only a „commercial discount“ appears in emails, commercial orders, credit notes, and invoices, it will be harder to later argue that this discount was actually an extraordinary, temporary contribution related to the duty. Conversely, if the documentation and contract specify that it is a tariff sharing or tariff mitigation measure, identifying the amounts to be refunded after the fact becomes much simpler.

      The goal is to create a clear view of the trend in discounts and payments so that, if needed, financial flows can be adjusted to align with the original terms of the agreement: if the exporter has helped cover a cost that then, in whole or in part, does not end up materializing, they will be eligible for a refund of the contribution paid.

      The contract will therefore include, in addition to the Tariff Sharing clause, a Tariff Reimbursement Allocation clause, which states that if the importer receives a refund, credit, or any other economic benefit related to the duty for which the exporter has granted a discount, the importer must return the corresponding portion of the benefit to the exporter in full. or proportionally, depending on how the parties intend to distribute risk and incentive.

      Importer’s responsibility to seek reimbursement

      It is unclear whether, in the case of US reciprocal duties, importers can simply file an administrative claim to get a refund or if legal action will be required. The latter seems more probable.

      Generally, obtaining a duty refund involves action, deadlines, documentation, and coordination with brokers and customs consultants. In most cases, the entity controlling the process is the importer (or someone acting on their behalf).

      This raises a sensitive but very real issue: if the importer knows that they will have to invest time and money to obtain a refund, only to then have to share the benefit with the exporter, their incentive to take action may be reduced. To prevent this inertia  the contract should contain an express obligation to take action, set out as a duty of best efforts or commercially reasonable efforts.

      For example, the contract should specify that the importer must inquire about the conditions and time limits of the process, keep relevant documentation, regularly inform the exporter about the progress of the initiatives, and not unilaterally waive or reduce the claim if it affects the exporter’s economic rights.

      Preventive Agreements on Litigation and Cost Allocation

      When reimbursement involves a lawsuit or structured legal action, the obstacles are organizational and financial: who decides if and when to proceed, who selects the lawyers, who pays the costs upfront, how the net recovery is divided, and who has the final say on a settlement. This generally applies to all contracts, not just this case: dispute resolution methods must be addressed and agreed upon before the problem arises.

      Otherwise, the dispute resolution process risks becoming a secondary improvised negotiation at the worst time — when the parties are already under pressure from margins, cash flow, and regulatory uncertainty. As a result, it becomes much harder to reach an agreement.

      How to handle new tariffs and their potential cancellation

      To safeguard against uncertainty, the agreement should be organized into two stages.

      • The first stage regulates the immediate impact of the change in scenario, for example, the introduction of a new tariff or its increase (renegotiation, cost sharing, automatic adjustment : I discussed this in this article).
      • The second stage manages the possible „rollback“ (right to reimbursement, process, allocation criteria).

      This approach has a clear benefit: it does not force the parties to discuss every time the tariff regime changes or a decision to cancel tariffs is made. Instead of reacting to market changes, a tool is adopted to manage potential scenarios, which is much more resilient commercially and easier to oversee, as the rules have already been agreed upon.

      This allows the impact of duties to be regulated not as an extraordinary variable, to be agreed upon on a one-time basis, but as a structural, adaptable phenomenon that could last a long time.

      This is why it is crucial to know how to draft contracts that cover both the current situation and potential changes, including any refunds.

      Conclusion: Three practical steps for companies exporting to the US

      The first is to agree on the consequences for the contract of the introduction of a new duty, increasing it, or revoking it (renegotiation, cost sharing, automatic price adjustment, right to share the refund).

      The second is to clearly document any discount granted to offset a duty. If it remains a generic „commercial discount,“ the right to a refund if reimbursement occurs will be much harder to enforce.

      The third step is to determine what happens if the duty is canceled or revoked: the importer’s responsibility to take action to get a refund, manage the administrative process or litigation, how to divide costs, who oversees the activities of consultants and lawyers, and how the recovered funds will be allocated.

      How do you approach negotiating a trade agreement with China?

      Based on my experience, let’s examine the issues to be addressed and the main questions to ask, taking the negotiation of a trade distribution agreement as a practical example.

      Let’s start with the first issue that is important to clarify.

      Nice Business Card – But Who Is This Guy?

      Business cards, websites, printed or digital brochures, presentations, and any other materials shared in English have no official value in China.

      The company name of the counterparty and the first and last names of people representing it or acting on its behalf, written in English, are only fictitious names.

      To be certain of the company’s data and the identity of the persons, it is necessary to ask for the information in Chinese, with particular reference to the company’s business license (equivalent to the Companies House or Chamber of Commerce’s excerpt), from which the name, corporate purpose, registered and paid-up share capital, and the name of the legal representative can be inferred.

      The data can then be verified by accessing the portal of the State Administration of Industry and Commerce (SAIC) of the province where the Chinese party is based.

      This first verification is essential to ensure that you do not waste time or even run into scams (here’s an in-depth article on Legalmondo’s blog).

      If You Don’t Own Your Trademark, Someone Else Will – and Charge You for It

      Trademark First, Trade Later. China operates on a first-to-file system for trademarks, which means that the first person or company to register a trademark – not necessarily the original creator or most famous user – gains the legal rights to it. This creates a serious risk: if you haven’t registered your trademark in China, someone else might do it before you, and then either use it freely or demand a hefty ransom to give it back. Even high-profile figures like Elon Musk and Michael Jordan have been entangled in costly and protracted disputes with Chinese trademark squatters. In many cases, getting the mark back is highly complicated, and sometimes legally impossible.

      To avoid this, register your trademarks early, even before entering the Chinese market. File directly with the China Trademark Office (CTMO) and don’t stop at the English version — consider registering a Chinese character version as well, since that is how your brand will often be known locally.

      Once that base is covered, clearly state in your contract that your Chinese partner is not allowed to file a registration of any of your trademarks in China, in Latin or Chinese characters, and that he will use trademarks and IP rights in strict conformance to the contract and your instructions.

      For a deeper dive into how to effectively protect your IP rights in China, check out our detailed article on the Legalmondo blog.

      Contracts can wait. First, get on the same page

      When negotiating with a Chinese partner, it’s often a mistake to begin the conversation by exchanging contract drafts. Instead, focus first on the substance — the relationship’s commercial and technical terms. Using a clear checklist of key discussion points (such as products, pricing, delivery terms, technical standards, after-sales support, exclusivity, duration, payment terms, etc.) helps ensure that both sides are aligned on what really matters. Take detailed notes and keep minutes of the discussions, especially where and when consensus is reached, and make sure those minutes are circulated and expressly agreed upon. Once substantial agreement has been achieved on the main terms, this memo can then be handed over to your lawyer, who will translate the business understanding into clear and coherent contractual language. This approach saves tons of time, as it helps avoid unnecessary back-and-forth on legal language before the core deal is in place.

      Think Your NDA Covers You in China? Think Again

      Yes, they are—and often underestimated. A well-drafted Non-Disclosure Agreement (NDA) is essential when the parties plan to exchange confidential information, such as technological know-how, commercial strategies, supplier data, or client lists. Especially in the early phases of negotiation or cooperation, before a main contract is signed, an NDA helps protect intellectual and business assets.

      However, as with all contracts in China, a generic NDA template copied from other jurisdictions will likely be of limited use. To be truly effective, the NDA must be adapted to the specifics of the Chinese legal environment. This includes ensuring that it is enforceable in China: the NDA should include the proper dispute resolution mechanism (see below on why you should consider applying Chinese law and litigating in China), and it must specify clear, valid, and proportionate penalties for breach. In Chinese practice, stating specific contractual penalties (liquidated damages) is often more effective than vague references to compensation, as courts and arbitrators in China tend to enforce these more reliably if they are reasonable.

      While a good NDA is useful, it often falls short in China’s manufacturing and sourcing landscape. This is where the NNN Agreement – standing for Non-Disclosure, Non-Use, and Non-Circumvention – becomes critical. Unlike standard NDAs that primarily focus on confidentiality, an NNN Agreement is designed to address the unique risks of doing business in China. It prevents the recipient from not only disclosing confidential information but also from using it for their benefit or bypassing the disclosing party to work directly with suppliers, clients, or partners. Which, in China, is a very real risk.

      This broader scope is vital when dealing with Chinese manufacturers or intermediaries, who may otherwise be tempted to replicate products or contact customers directly or through third parties. As seen with the NDA, also the NNN Agreement must be drafted in Chinese, governed by Chinese law, and enforceable in Chinese courts -otherwise, it may offer little real protection.

      Joint venture? Easy, Cowboy

      A joint venture is often the first proposal that comes up when negotiating with a potential Chinese partner. It seems appealing: sharing risks and investments, accessing the local market with an ally, leveraging their knowledge and network of contacts. But the reality is often very different from what it appears to be.

      A joint venture is a complex, expensive, and rigid corporate structure that requires significant investments of money, time, and human resources, as well as the ability to continuously manage often divergent interests among the partners. The vast majority of Sino-Foreign JVs have gone wrong, or will go wrong. Or very wrong. First and foremost, because the JV is usually managed by the Chinese partner, and exercising effective control over the company’s operations is a very challenging undertaking.

      Before going down this road, it is essential to ask yourself a few questions: Is the joint venture really indispensable for developing this business in China? (Spoiler: generally, no). Are there less restrictive and risky alternatives, such as a distribution agreement or a licensing agreement? (Yes, almost always). And above all: how well do we really know our potential partner?

      A joint venture should only be considered if it is strictly necessary for the project’s development, after carefully verifying the commercial viability and the reliability of the Chinese partner, and ensuring the ability to maintain effective control over the JV’s operations.

      It is better to start with simpler and more flexible forms of collaboration to test the market and the relationship with the other party before committing to such a demanding investment. Otherwise, the mirage of the joint venture risks turning into a nightmare that can be very costly.

      Memorandum of Understanding: Where Good Intentions Become Bad Contracts

      A Memorandum of Understanding (MoU) is a helpful tool at the early stage of a commercial relationship. It serves as a roadmap for future negotiations, where the parties outline the main principles and intentions that will guide the drafting of the final agreements. When used correctly, an MoU can significantly facilitate negotiations by ensuring that both sides commit to negotiating the agreement in good faith and share a common understanding of key points such as pricing models, territorial scope, exclusivity, milestones, budget, or performance expectations.

      However, an MoU must be used for what it is: a preparatory document, not a binding contract. Care must be taken to avoid ambiguity and unintended commitments. The text should clearly specify that the parties remain free to conclude – or not – the final agreements and which clauses are non-binding – such as the commercial framework or indicative timelines – and which provisions are binding, typically confidentiality, exclusivity during the negotiations (if agreed), governing law, and dispute resolution. A poorly drafted MoU, which includes overly precise and complete terms, can be misinterpreted as a final agreement, creating unnecessary legal risk. So yes, MoUs are valuable – but only when used correctly. If you’d like to know more, go deeper by reading this article.

      Bad Drafts, Big Headaches, Poor results

      Draft agreements used in China are often copied and pasted from incomplete, superficial, poorly organised templates written in bad English, which often do not match the Chinese version of the contract.

      Correcting and integrating these drafts is complicated and more time-consuming than starting from a good template, with suboptimal results.

      It would be better to propose a consistently constructed text and ask the other party to propose any changes and additions to this draft.

      Your Western Contract Template Won’t Work Here

      Even if an English-language contract is perfectly valid, there are many reasons why using contract templates built for other countries in the Chinese market is inadvisable.

      The first is the fact that Anglo-Saxon-based agreements, such as those for the U.S., refer to a common law system (which is based on judicial decisions and case law precedents) that is very different from that of civil law countries (such as China and Italy), which derives from the Roman legal tradition, based on a codified set of written laws.

      It follows that the layout of an agreement on the Anglo-Saxon model is different, much more detailed, and wordy than that of a typical agreement based on a civil law system. Since contract negotiations in China are generally lengthy and complex, working on redundant and complicated text at the outset does not help.

      If we stick to the example of a distribution contract, it should be added that it is advisable to apply Chinese law to provide for arbitration based in China (e.g., at CIETAC) or in Hong Kong or Singapore (third countries, where, however, the costs of the procedure increase significantly) as the mode of dispute resolution. So, the contract should be built on a model that conforms to the law that will apply to the relationship.

      Home Court Advantage Won’t Help You in China. In fact, quite the opposite

      This is a typical point of disagreement in the negotiation of an international contract: the parties aim to have the law of their own country apply, and to stipulate that any disputes be adjudicated by their domestic courts.

      In our case, insisting on the application of Italian (or any other foreign) law and state court is not a good idea: it should be considered, in fact, that a distribution agreement is carried out, for the vast majority, in the country where the distributor operates and where the products are sold (in our case, in mainland China).

      In disputes, the parties‘ (particularly the manufacturer’s) interest is to obtain a quick decision by the adjudicating body, especially if situations requiring immediate protection (such as unfair conduct or counterfeiting of trademarks and patents by the distributor) are ongoing.

      None of this is possible if one goes to an Italian judge (with lengthy litigation time and the need then for a complex and costly process to recognise and enforce the decision in China); on the contrary,  an arbitration in China, applying Chinese law, allows one to reach a decision quickly (on average 6-9 months) and, if necessary, also to obtain urgent measures to stop any unfair conduct.

      Chinese Law Isn’t a Black Box (If You Know What You’re Doing)

      The lawyer assisting you should know it.

      Therefore, it is not a leap in the dark, and one should not fear surprises.

      In addition, it should be remembered that an agreement is primarily based on the covenants that the parties have written in the contract; therefore, if the contract has been well drafted, the rules to be applied are clear.

      Finally, if we consider distribution agreements, keep in mind that they are a framework contract, within which a series of separate product sales contracts are concluded. If both countries are contracting parties to the 1980 Vienna Convention on the International Sale of Goods (CISG), then the uniform, clear, and balanced rules of the convention apply automatically, just don’t opt out!

      One Contract, Two Languages

      The contract is also valid in English only.  However, it is undoubtedly advisable to draft a Chinese version with facing text.

      This is for several reasons: first, it prevents the Chinese party from having to arrange for a translation of the text during negotiations for its own internal use (top managers often do not speak English), thus slowing down the various steps of negotiations.

      Also, to ensure that the Chinese side fully understands the agreement’s content and to avert misunderstandings (real or instrumental) about the interpretation of certain covenants.

      Finally, it should be borne in mind that if the contract were later to be used before a court or administrative authority in China, the only language admitted would be Chinese; for this reason, it is better to have already a text agreed and signed by the parties in Chinese as well, rather than having to prepare a unilateral translation later.

      Sign. And chop

      Does the contract need to bear the company’s official stamp? Yes, and this point is absolutely crucial. In China, a company’s official „chop“ (the red-ink stamp) is equivalent to a signature and is conclusive proof that the person signing the contract has the authority to represent the company. A signature alone, even from someone with an important-sounding title, may not be sufficient if it is not accompanied by the official chop. Without it, the contract might later be challenged or even considered void. Before signing, always verify that the stamp used matches the one registered with the company’s business license or official corporate records, and ensure that the stamp is applied on every page or at least on the signature page, in line with local practice.

      Don’t Let Your Contract Collect Dust

      Things change fast, especially in China. New products are added, market conditions evolve, people leave the company, new competitors emerge on the horizon, and so on. Companies constantly adapt to the new conditions, and so must the contract.

      Any change in the relationship should be formalized correctly. To avoid misunderstandings and disputes, it’s advisable to include an integration clause in the contract, specifying that any amendments or additions will only be valid if agreed in writing, signed by the parties’ authorized representatives, and annexed as an addendum to the original agreement.

      It’s not enough to include this clause – you must follow it consistently. If things change, agreements reached verbally, through Wechat messages, and through email exchanges may make things complicated if they are not formalised adequately according to the procedure set out in the original contract.

      If you’d like to go deeper, check out this article.

      Christophe Hery

      Rechtsgebiete

      • Agentur
      • Kartellrechtlichen
      • Schiedsgerichtsbarkeit
      • Vertrieb
      • e-Commerce
      Kontakt Christophe

      Schreiben Sie an Christophe





        Legalmondos Datenschutzbestimmungen lesen.
        This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

        Corporate Sustainability in Practice – How Contracts Shape Responsibility

        23. März 2026

        • Finland
        • Verträge
        • Vertrieb
        • Environmental Social Governance

        Foreign franchisors entering into franchise agreements in Spain should take careful note of the content of the judgment issued by the Provincial Court of Córdoba on November 20, 2025, and require that the partner(s) and the directors of the franchisee company expressly guarantee and indemnify the payment of any debts arising from the franchise agreement.

        Spanish corporate law establishes the principle of liability for the directors of corporations or limited liability companies when the company is subject to dissolution (for example, due to losses that reduce equity to less than 50% of the share capital) and, despite this, they fail to convene a meeting to adopt corrective measures (dissolution or capital increase).

        In the case of the aforementioned ruling, the franchisor was unable to collect the debt arising from the franchise agreement from the franchisee due to the latter’s insolvency; so it decided to claim that debt from the company’s administrator based on the provision mentioned above, that is, due to the fact that the franchisee company was facing dissolution due to losses and the administrator had not convened a shareholders’ meeting, as was his obligation, so that the shareholders could decide how to resolve the situation.

        The ruling we are discussing from the Court of Appeal of Córdoba upholds the lower court’s decision and dismisses the franchisor’s claim against the sole administrator of the franchisee company, stating that:

        With regard to liability for corporate debts under Article 367 of the Capital Companies Act, the court recognised the existence of the corporate debts, the presence of grounds for dissolution, the breach of the legal obligations by the corporate administrator, and his liability, but found that a ground for exoneration from liability existed in accordance with the doctrine of “known risk.” Thus, it was noted that the plaintiff is a franchisor and X. S.L. was the franchisee, and it was evident from the electronic communications that the franchisee was under constant monitoring and the franchisor was aware of the risk involved in the operations, halting the shipment of goods (clothing) as soon as the limits of the guarantees granted were exceeded, meaning the plaintiff voluntarily assumed the risk. For all these reasons, the claim was dismissed.

        In conclusion, and in light of the foregoing, the present franchise relationship and its conduct allow us to consider that it has been established that the franchisor (creditor) had greater knowledge of the franchisee’s (debtor’s) financial situation, beyond the information appearing in the annual accounts filed with the Commercial Registry, as it was the franchisee’s primary supplier. And this knowledge and control of the debt by the franchisor (through the increase in orders) justifies the exoneration of the corporate director’s liability for corporate debts under Article 367 of the Capital Companies Act, which leads to the dismissal of the appeal

        The legal theory or principle of Known/Accepted Risk, to which the judgment refers, holds that harm caused to a third party, with or without a contractual relationship in place, is not considered unlawful if the victim was aware of the risk and voluntarily assumed it.

        This doctrine was initially developed within the framework of tort liability: whoever engages in a risky activity and reaps its benefits must bear its negative consequences, that is, the risk—(cuius commodum, eius incommodum).

        However, case law has extended the application of this theory to the field of contractual liability, as demonstrated in the judgment under discussion.

        Therefore, since the plaintiff was aware of the defendant’s financial situation and solvency—having “monitored” its activity as a franchisor—and despite this, decided to maintain the contract’s validity, thereby increasing the debt, the ruling holds that the franchisor assumed the risk, which constituted grounds for exonerating the administrator from liability. However, more concerning than the above is that this “known risk” theory could be  considered applicable to the liability of the franchisee company itself, which could be exonerated from liability based on the franchisor’s monitoring of its activities.

        The conclusion of all the above is that, based on this application of the known risk theory, franchisors may face difficulties in claiming debts owed by the franchisee company from its directors in the event of the company’s insolvency; therefore, it is highly advisable that, when signing the franchise agreement, a joint and several guarantee for the franchise’s potential future debts be required from its directors and partners, which, moreover, is a fairly standard practice.

        In this way, the objection based on the theory of known risk would not come into play.

        Vietnam has been added to the EU list of non‑cooperative jurisdictions for tax purposes (Annex I), following the Council’s update of 17 February 2026.

        For EU companies buying goods and services from Vietnam, this is not an outright ban on trade, but rather a signal that substantially heightened tax governance scrutiny, documentation expectations, and (in some cases) more demanding payment execution will follow in the months ahead. The EU listing process is designed less to “name and shame” and more to encourage positive change through cooperation and dialogue, but once a jurisdiction is placed on Annex I, EU Member States implement “defensive measures” that can materially affect tax treatment, withholding obligations, and audit intensity for Vietnam-linked transactions.

        What the EU decision does (and does not) do

        The EU blacklist is a tax‑governance instrument: it does not prohibit EU businesses from importing goods from Vietnam or procuring Vietnamese services, and it does not alter Vietnam’s domestic tax regime, corporate income tax rules, withholding tax framework, or investment policies.

        At the same time, the EU can deepen cooperation with Vietnam on the political and economic track while still applying tax‑governance pressure through listing mechanisms, so businesses should be prepared for a “partnership plus scrutiny” environment rather than expecting the two to be perfectly aligned.

        In January 2026, the EU and Vietnam upgraded their relations to a Comprehensive Strategic Partnership, framed as a platform to strengthen cooperation across areas such as trade and investment, climate/energy, sustainable development and digital transformation-a signal that the blacklisting is a technical compliance tool, not a diplomatic rupture.

        The ideological paradox: a Socialist Republic on a tax-haven list

        Vietnam’s presence on the blacklist is striking when viewed in its broader political context. The EU blacklist was conceived after major tax-transparency scandals (the Panama Papers and LuxLeaks) to address jurisdictions that facilitate offshore structures or fail to meet information-exchange standards. In the Western imagination, “tax haven” connotes liberal microstates or offshore centres, yet Vietnam, governed by a Communist Party, now sits on the same list. This reflects the reality of Vietnam’s hybrid economic model: politically socialist, but economically pragmatic since the Đổi Mới reforms of the late 1980s, with selective tax incentives for special economic zones, high-tech investments and priority sectors that, in certain cases, can significantly reduce the effective tax burden for foreign investors. The EU’s concern is not Vietnam’s headline corporate tax rate but rather-at this stage-the absence of adequate exchange-of-information infrastructure, though the architecture of its preferential regimes has also attracted scrutiny in the past. The listing is a technical compliance issue, not an ideological one. 

        Why Vietnam was added: the listing criteria and timeline

        Vietnam has been subject to EU scrutiny since the very first iteration of the EU list in December 2017, when it was placed in Annex II (the “grey list”) alongside jurisdictions that have committed to reform but are not yet fully compliant. In October 2025, Vietnam was removed from Annex II after fulfilling its commitments on country-by-country reporting (CbCR), and appeared, at that point, to be on the path to full compliance. However, shortly afterwards-in November 2025-the OECD Global Forum published its peer review and rated Vietnam “Non-Compliant” with respect to the standard on Exchange of Information on Request (EOIR), a separate compliance area from CbCR, finding that further reforms remained outstanding and that improvements in the CbCR exchange framework were not expected before 2027. This OECD finding directly triggered the February 2026 move to Annex I-an escalation from the grey list to the blacklist, bypassing any intervening period of full compliance.

        The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), requiring compliance with AEOI and EOIR standards and membership of the Multilateral Convention on Mutual Administrative Assistance in Tax Matters; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.

        Vietnam’s response and the path to delisting

        Vietnam’s Ministry of Foreign Affairs responded publicly within days of the listing, defending the country’s tax transparency record and stating that the government is implementing a national action plan to follow OECD recommendations and expand tax cooperation with partners including the EU. Vietnam expressed readiness to engage with European authorities to ensure more objective and comprehensive assessments, and to promote cooperation for shared development and prosperity. Practitioner commentary suggests a concrete roadmap is achievable: with legislative amendments (decrees and circulars on EOIR procedures), the establishment of a dedicated EOIR unit, publication of enforcement statistics, and active technical engagement with the EU Code of Conduct Group from now through September 2026, Vietnam could realistically target removal from Annex I at the next EU review cycle in October 2026, although this timeline is ambitious and delisting is by no means guaranteed. The key point for EU businesses is that, while the listing may be relatively short-lived if Vietnam acts decisively, companies should not delay compliance preparations in reliance on early delisting-a proportionate, risk-based response is more appropriate than a wholesale restructuring of Vietnam-linked supply chains.

        How different payment types are affected in practice

        Goods (imports) are often the most straightforward in substance terms because there is usually a clear chain of documents: purchase orders, shipping documents, customs import paperwork, delivery notes, inspection/acceptance records and matching invoices.

        The risk uplift for goods is typically not about whether the purchase is real, but whether the overall supply chain and pricing remain coherent under scrutiny-for example, whether margins and intercompany arrangements around the import flow make commercial sense and are consistently documented.

        Services (outsourcing, consulting, IT development, marketing, support) tend to attract more questions because “what was delivered” is harder to evidence than a shipped product.

        If your EU entity pays a Vietnamese provider for services, expect to need a well‑organised evidence pack: a clear scope of work, time records or milestones, deliverables (reports, code repositories, tickets), acceptance sign‑offs, and a pricing rationale that matches the level of skill and effort involved.

        Royalties and IP-related payments (software licences, trademarks, know‑how, technology access) are particularly sensitive because they combine valuation complexity with cross‑border tax characterisation questions.

        Expect pressure-testing of (i) who truly owns and controls the IP, (ii) the contract chain and sublicensing rights, (iii) how the royalty rate was set using benchmarking or comparable arrangements, and (iv) whether the payment is genuinely for IP rather than a disguised service fee.

        Intragroup charges (management fees, shared services, cost recharges) are commonly the first area where tax authorities and counterparties ask for “benefit” evidence and allocation logic.

        Where Vietnam sits inside a group value chain, be ready to show why a charge exists, how it was calculated, how the recipient benefited, plus consistent intercompany agreements and transfer pricing support.

        Financing and treasury flows (interest, guarantees, cash pooling, factoring, trade finance) trigger the most intensive technical review because they involve both tax outcomes and financial crime/compliance sensitivities.

        Even where the structure is legitimate, these flows are more likely to be escalated internally for enhanced review and may require more supporting documentation before execution.

        How European banks may respond (and what that looks like in practice)

        Banks in the EU operate under a risk‑based approach to financial crime and compliance, and they may apply de-risking decisions, meaning they can choose to restrict or exit relationships or transaction types they view as exceeding their risk appetite or being operationally too costly to monitor. EU supervisory frameworks acknowledge that de-risking exists and call for proportionate, evidence-based risk assessments rather than indiscriminate blanket exclusions, but in practice banks have significant discretion.

        For an EU company initiating a bank transfer to a Vietnamese counterparty, the following discretionary measures can arise in practice, even where the payment is entirely lawful and commercially routine.

        A bank can pause execution and request additional documents before releasing funds, seeking comfort on the purpose and legitimacy of the transaction under its internal controls.

        Typical requests include the underlying contract or statement of work, invoices, proof of delivery or performance, an explanation of business purpose, and information on the beneficiary’s beneficial ownership or corporate structure.

        A bank can route the payment through manual review queues rather than straight-through processing, particularly for first-time beneficiaries, unusually large amounts, or payments with vague narratives that do not clearly describe the purpose.

        This creates operational knock-ons: late supplier settlement, goods held pending payment confirmation, or service suspension where the vendor operates on strict payment triggers.

        A bank can impose internal conditions as part of its customer-specific risk controls-for example requiring richer payment details, stricter invoice descriptors, or pre-approval workflows for Vietnam-corridor payments.

        A bank can decline to process specific transactions or decide to exit certain corridors, client types, or business models entirely as a risk-management choice. German financial institutions are described as applying enhanced due diligence, requiring full transparency of transaction purpose and ownership for Vietnam-linked payments.

        Where a payment is declined, the practical solution is often to adjust the execution setup-alternative banking channel, revised documentation pack, or modified payment mechanics-while keeping the underlying commercial relationship intact.

        EU companies are advised to develop a “Banking Compliance Pack” for Vietnam-corridor payments: a pre-assembled set of documents (contract, invoice, proof of delivery/performance, business rationale memo, and beneficial ownership information) that can be submitted proactively or in response to bank queries within hours rather than days.

        Non-tax defensive measures and EU funding implications

        Beyond tax measures, being on the EU blacklist triggers non-tax consequences that affect Vietnam’s economic relationship with the EU more broadly. EU investment programmes cannot channel funding through entities located in Vietnam, because using such an entity contradicts the core legal purpose of these funds, which are designed to promote good governance, transparency, and the fight against illicit financial flows. Affected funds include the European Fund for Sustainable Development (EFSD/NDICI), which de-risks major investments in areas like energy and digital; the InvestEU programme (which replaced the former EFSI); and the External Lending Mandate (ELM), which provides EIB loans for major infrastructure outside the EU. In addition, the General Framework for STS securitisation imposes separate restrictions on the use of entities in blacklisted jurisdictions within securitisation structures. For Vietnamese entities and their EU partners working on donor-funded or ESG-driven projects, this can be a significant constraint, as subsidiaries and other businesses in Vietnam may be cut off from these sources of EU financing.

        DAC6 reporting and public country-by-country reporting

        Cross-border arrangements involving Vietnam are now subject to heightened DAC6 scrutiny. In particular, Hallmark C.1(b)(ii) may be triggered where a deductible cross-border payment is made by an EU-based associated enterprise to a tax resident in Vietnam, subject to Member State-specific implementation of the main benefit test and other conditions. Large multinationals (consolidated revenue of EUR 750 million or more in each of the last two fiscal years) must also prepare and publicly disclose a Public Country-by-Country Report. Under the EU Public CbCR Directive, Vietnam activities must be reported separately-not aggregated as “Rest of the World”-disclosing a list of all consolidated subsidiaries, description of activities, number of full-time equivalent employees, revenues (including related-party revenue), profit or loss before tax, income tax accrued and paid, and accumulated earnings. For FY 2025 and FY 2026, Vietnam information is already reportable separately by affected multinationals.

        Country notes (alphabetical)

        Belgium: Belgium applies non-deductibility of costs, CFC rules, and participation exemption limitations linked to both the EU list and certain domestic criteria. A critical Belgian-specific rule is the reporting obligation for payments made to entities in blacklisted jurisdictions where the aggregate of such payments exceeds EUR 100,000 in the taxable period; once this threshold is met, each such payment must be reported in the annual tax return, and any payment that is not reported, or that cannot be justified on specific grounds, is not deductible. Belgium follows a dynamic approach to the EU list, meaning EU list updates take effect automatically without a further domestic step. For Belgian payers, immediate practical priorities are: (i) identifying all Vietnam-linked payment streams above EUR 100,000, (ii) ensuring the reporting mechanism in the annual tax return is in place, and (iii) building the justification file for each reported payment.

        France: France applies all four defensive measures-non-deductibility of costs, CFC rules, withholding tax, and participation exemption limitation-but via a national decree-based list that refers to the EU list while also applying additional French domestic criteria. France follows a static approach, updating its domestic non-cooperative state list through an annual Decree in the Official Journal, with tax consequences applying from the first day of the third month following publication. The last French update took place in April 2025, and at the time of writing (May 2026) no subsequent decree incorporating Vietnam has been published. A further update is expected imminently and will likely include Vietnam. Once Vietnam appears on the French list, key measures include: a 75% withholding tax on interest, royalties, dividends and service fees (counterevidence possible); denial of the participation exemption (counterevidence possible for jurisdictions meeting certain criteria); denial of deductibility of interest, royalties and service fees (counterevidence possible); and a stricter CFC rule under which the burden of proof is reversed and foreign withholding taxes cannot be credited against French CFC income. French payers should monitor the next French decree closely and prepare counterevidence files now so they are ready the moment the decree is published.

        Germany: Germany applies all four defensive measures through the Tax Haven Defence Act (Steueroasen-Abwehrgesetz, StAbwG), linked to the EU list via a Tax Haven Defence Ordinance that is updated once per year, typically at year-end taking into account the October EU list update. The expected sequence for Vietnam is: December 2026-amendment to the Tax Haven Defence Ordinance to incorporate Vietnam; from 2027 (Year 1)-stricter CFC rules and extended withholding tax of 15% (plus a 5.5% solidarity surcharge) apply to income from financing relationships, insurance or reinsurance services, legal and advisory services, and trading of goods and services; from 2029 (Year 3)-denial of the participation exemption activates; from 2030 (Year 4)-denial of deductible business expenses activates. Importantly, Germany’s extended withholding tax can override double tax treaties. The multi-year ramp-up means that immediate German impacts are CFC scrutiny and withholding tax friction on specific payment types, while the broader expense deduction denial will only bite from 2030 onwards-giving German payers time to prepare, but making early documentation investment worthwhile.

        Italy: Italy uses the EU list for monitoring and deductibility purposes under Article 110 TUIR: costs connected with counterparties in Annex I jurisdictions are generally deductible up to “normal value,” while amounts above normal value require evidence of an effective economic interest, and all such costs must be separately indicated in the annual income tax return (Modello REDDITI). Italy’s framework is directly triggered by the EU list, meaning Vietnam’s Annex I status is effective for Italian purposes from the publication of the Council conclusions in the EU Official Journal, without any further domestic implementing step being required.

        For Italian payers, service costs, royalties, and intragroup charges to Vietnam are the most sensitive categories: robust documentation of deliverables, pricing and economic rationale is essential, and accounting teams need to ensure they can cleanly isolate Vietnam-linked costs in the year-end reporting workflow.

        Malta: Malta follows a dynamic approach to the EU list, meaning Vietnam’s Annex I status takes effect automatically in Malta’s tax framework. Malta applies a limitation of the participation exemption on dividend income derived from a participating holding in a body of persons that has been resident in a jurisdiction on the EU list for a minimum period of three months during the year immediately preceding the year of assessment, subject to a counter-evidence exception based on “people functions.” Malta does not apply non-deductibility, CFC, or withholding tax defensive measures against EU-listed jurisdictions as primary tools, so the main Malta-specific concern for holding and investment structures is participation exemption eligibility and substance evidence. For Malta-based groups, the practical response is to keep board materials, contracts, and commercial rationale tightly aligned, and to prepare for more intensive counterparty due diligence (beneficial ownership, substance, and tax residency) from EU customers and financial institutions.

        Netherlands: The Netherlands applies a 25.8% conditional withholding tax on interest, royalties, and (since 1 January 2024) dividends paid to related entities in EU-listed jurisdictions or low-tax jurisdictions, as well as CFC rules with counterevidence possible. The Netherlands follows a static approach: the list applicable for a tax year is based on the EU list as it stood at the end of the preceding year, using the October update as the reference. This means the Dutch 2027 Regulation will include Vietnam only if Vietnam remains on the EU list after the October 2026 review cycle. No withholding tax consequences arise for Dutch payers immediately in 2026 as a direct result of Vietnam’s February 2026 listing, but the October 2026 review date is critical: if Vietnam remains listed, Dutch conditional withholding tax obligations will activate from 1 January 2027. Dutch payers with intragroup dividend, interest, and royalty flows to Vietnam should use the current window to restructure documentation and pricing support and to assess whether existing double tax treaty protections remain effective in light of the conditional WHT mechanics.

        Spain: Spain does not mechanically mirror the EU list, but operates its own domestic list of non-cooperative jurisdictions, which is updated separately and can include or exclude jurisdictions differently from Annex I. Spain applies a static approach, with the list specified in law. The practical implication is that the Spanish domestic tax consequences of Vietnam’s listing depend on whether and when Spain updates its domestic list to include Vietnam, rather than arising automatically from the EU Council’s February 2026 decision. For Spain-based procurement and finance teams, do not assume a one-to-one mapping between EU-list status and Spanish domestic tax outcomes, but do treat Vietnam-linked transactions as higher-scrutiny items from an audit and counterparty due diligence perspective, and invest in cleaner contracting, invoice narratives, and performance evidence for services, royalties, and intragroup charges.

         

        Practical next steps for EU companies

        1. Map exposures: Identify and quantify all payment streams relating to Vietnamese entities, broken down by payment type (goods, services, royalties, intragroup charges, financing).
        2. Understand your Member State’s rules: Confirm which defensive measures apply in the relevant EU payer jurisdiction, when they take effect (immediately or staged), whether the jurisdiction follows the EU list dynamically or statically, what relief conditions exist, and what documentation is required.
        3. DAC6 readiness: Assess whether Vietnam-linked arrangements trigger DAC6 reporting obligations (particularly deductible cross-border payments between associated enterprises) and ensure reporting infrastructure is in place.
        4. Transfer pricing and substance: Validate intercompany services, royalties and financing arrangements by reassessing pricing, benefit tests and contractual terms; strengthen contemporaneous documentation before year-end.
        5. Public CbCR messaging: If within scope, assess public CbCR disclosure implications for Vietnam operations and align tax, legal, ESG and investor-relations communications accordingly.
        6. Vendor due diligence: Implement or strengthen due diligence on Vietnamese counterparties, including tax residence evidence, beneficial ownership documentation, and substance and economic activity confirmation.
        7. Banking compliance pack: Build a pre-assembled documentation pack for Vietnam-corridor payments (contract, invoice, proof of delivery/performance, business rationale, beneficial ownership information) to address bank queries within hours rather than days.
        8. Monitor the October 2026 review: Track Vietnam’s progress on EOIR reforms and the EU Code of Conduct Group’s October 2026 review cycle. If Vietnam is removed from Annex I in October 2026, Member States that follow a static approach (Germany, Netherlands) will not apply defensive measures to Vietnam in their 2027 rules; France, which also follows a static approach but applies additional domestic criteria, may nonetheless retain Vietnam on its own non-cooperative state list even after EU delisting. The October 2026 outcome is therefore commercially significant for medium-term planning.
        9. Embed internal governance: Install jurisdiction-risk gateways in approval workflows for new entities, contracts, loans, and IP arrangements involving Vietnam, to ensure proper sign-off and documentation from inception.

        Under French Law, franchisors and distributors are subject to two kinds of pre-contractual information obligations: each party must spontaneously inform their future partner of any information they know is decisive to their consent. In addition, for certain contracts – i.e a franchise agreement – there is a duty to disclose a limited amount of information in a document. These pre-contractual obligations are mandatory rules of public policy. Thus, these two obligations apply simultaneously to the franchisor, distributor or dealer when negotiating a contract with a partner.

        Takeaways

        • The information required by the DIP must be fully completed and updated ;
        • The information not required by the DIP but provided by the franchisor must be carefully selected and sincere;
        • Franchisee must be given the opportunity to request additional information from the franchisor;
        • Franchisee’s experience in the economic sector enables the franchisor to considerably limit its exposure to the risk of contract cancellation due to a defect in the franchisee’s consent;
        • Franchisor must keep the proof of the actual disclosure of pre-contractual information (whether mandatory or not).
        • The general information obligation under common law (Article 1112-1 of the French Civil Code) may apply concurrently with the special disclosure obligation provided for under Article L. 330-3 of the French Commercial Code.

        General duty of disclosure for all contractors

        What is the scope of this pre-contractual information?

        This obligation is imposed on all counterparties, for any kind of contract. Indeed, article 1112-1 of the Civil Code states that:

        (§. 1) The party who knows information of decisive importance for the consent of the other party must inform the other party if the latter legitimately ignores this information or trusts its counterparty.

        (§. 3) Of decisive importance is the information that is directly and necessarily related to the content of the contract or the quality of the parties. »

        This obligation applies to all contracting parties for any type of contract.

        French courts have ruled that this general information obligation may apply concurrently with the special disclosure obligation under Article L. 330-3 of the French Commercial Code (see below), answering the question in the affirmative (Paris Court of Appeal, 27 March 2024, no. 22/12665). The scope of the latter has however, been defined by the French Supreme Court (« Cour de cassation ») : only information bearing a direct and necessary link with the subject matter of the contract or the qualities of the parties is subject to the disclosure obligation (Cass. com., 14 May 2025, no. 23-17.948).

        Who bears the burden of proof?

        The burden of proof rests on the person who claims that the information was due to him. He must then prove (i) that the other party owed him the information but (ii) did not provide it (Article 1112-1 (§. 4) of the Civil Code)

        Special duty of disclosure for franchise and distribution agreements

        Which contracts are subject to this special rule?

        French law requires (art. L.330-3 French Commercial Code) the provision of a pre-contractual information document (in French “DIP”) and the draft contract, by any person:

        • which grants another person the right to use a trade mark, trade name or sign,
        • while requiring an exclusive or quasi-exclusive commitment for the exercise of its activity (e.g. exclusive purchase obligation). The quasi-exclusive nature of the commitment is assessed on a case-by-case basis by French courts, independently of the 80% purchase threshold provided for under EU Regulation 2022/720, which is treated merely as an indicative reference.

        Concretely, DIP must be provided, for example, to the franchisee, distributor, dealer or licensee of a brand, by its franchisor, supplier or licensor as soon as the two above conditions are met. French courts have moreover recently had occasion to confirm that the scope of the DIP obligation is not limited to franchise agreements but extends, in particular, to dealership agreements, provided the above-mentioned conditions are met (Paris Court of Appeal, 22 May 2024, no. 22/08672).

        When the DIP must be provided?

        DIP and draft contract must be provided at least 20 days before signing the contract, and, where applicable, before the payment of the sum required to be paid prior to the signature of the contract (for a reservation).

        What information must be disclosed in the DIP?

        Article R. 330-1 of the French Commercial Code requires that DIP mentions the following information (non-detailed list) concerning:

        • Franchisor (identity and experience of the managers, career path, etc.);
        • Franchisor’s business (in particular creation date, head office, bank accounts, history of the development of the business, annual accounts, etc.);
        • Operating network (members list with indication of signing date of contracts, establishments list offering the same products/services in the area of the planned activity, number of members having ceased to be part of the network during the year preceding the issue of the DIP with indication of the reasons for leaving, etc.);
        • Trademark licensed (date of registration, ownership and use);
        • General state of the market (about products or services covered by the contract) and local state of the market (about the planned area) and information relating to factors of competition and development perspective. With respect to the local market, the French Supreme Court (« Cour de cassation ») has held that the franchisor is not required to conduct a market study, but that if one is provided, it must be accurate and verifiable (Cass. com., 18 Oct. 2023, no. 22-19.329).;
        • Essential element of the draft contract and at least: its duration, contract renewal conditions, termination and assignment conditions and scope of exclusivities;
        • Financial obligations weighing in on contracting party: nature and amount of the expenses and investments that will have to be incurred before starting operations (up-front entry fee, installation costs, etc.).

        Beyond the exhaustiveness of the information required under the aforementioned provision, the DIP is subject to a qualitative standard. All information provided — including information provided spontaneously — must be accurate and truthful to ensure that the prospective network member’s consent is fully informed and free from any defect.

        How to prove the disclosure of information?

        The burden of proof for the delivery of the DIP rests on the debtor of this obligation: the franchisor (Cass. Com., 7 July 2004, n°02-15.950). The ideal for the franchisor is to have the franchisee sign and date his DIP on the day it is delivered and to keep the proof thereof.

        The clause of contract indicating that the franchisee acknowledges having received a complete DIP does not provide proof of the delivery of a complete DIP (Cass. com, 10 January 2018, n° 15-25.287).

        The franchisor is subject to a duty to update the DIP until the contract is signed

        In a ruling dated 26 June 2024 (no. 23-14.085 PB), the French Supreme Court held that formal compliance of the DIP at the time of its delivery is not sufficient to exonerate the franchisor from all pre-contractual liability. This position was confirmed by a subsequent ruling of 4 December 2024 (no. 23-16.684).

        These two decisions appear to establish a duty of ongoing updates incumbent upon the network head throughout the entire period between the delivery of the DIP and the execution of the contract. Where significant events occur during that interval — insolvency proceedings affecting network members, major litigation, or structural changes to the network — the network head is required to proactively inform the prospective member. The court then examines whether the failure to disclose such information was liable to distort the candidate’s assessment of the network and, consequently, to vitiate his consent (Cass. com., 26 June 2024, op. cit.).

        A franchisor may therefore not shelter behind the initial regularity of the DIP to discharge its disclosure duty where the network’s situation has materially changed prior to the signing of the contract.

        Sanction for breach of pre-contractual information duties

        Criminal sanction

        Failing to comply with the obligations relating to the DIP, franchisor or supplier can be sentenced to a criminal fine of up to 1,500 euros and up to 3,000 euros in the event of a repeat offence, the fine being multiplied by five for legal entities (article R.330-2 French commercial Code).

        Cancellation of the contract for deceit

        The contract may be declared null and void in case of breach of either article 1112-1 of the French Code civil or article L. 330-3 of the French Code de commerce. In both cases, failure to comply with the obligation to provide information is sanctioned if the applicant demonstrates that his or her consent has been vitiated by error, deceit or violence. In this respect, courts conduct a concrete, case-by-case assessment, taking into account in particular the professional experience and personal due diligence of the distributor: a sophisticated candidate will face greater difficulty in establishing deceit, and his experience in the relevant sector may be sufficient to exonerate the franchisor (Paris Court of Appeal, div. 5 – ch. 11, 26 Apr. 2024, no. 21/13205), even where the information provided was incomplete or inaccurate (Paris Court of Appeal, 20 Jan. 2021, no. 19/03382).

        The path is therefore narrow for the franchisee: he cannot invoke error concerning profitability when it is he who draws up his plan, and even when this plan is drawn up by the franchisor or based on information drawn up and transmitted by the franchisor, the experience of the franchisee who knew the local market may exonerate the franchisor.

        Regarding deceit, Courts strictly assess its two conditions which are:

        • (a material element) the existence of a lie or deceptive reticence (article 1137 French Civil Code), and
        • (an intentional element) the intention to deceive his counterparty (article 1130 French Civil Code).

        Where applicable, the parties must return to the state they were in before the contract.

        Damages

        Although the claims for contract cancellation are subject to very strict conditions, it remains that franchisees/distributors may alternatively obtain damages on the basis of tort liability for non-compliance with the pre-contractual information obligation, subject to proof of fault (incomplete or incorrect information), damage (loss of opportunity of not contracting or contracting on more advantageous terms) and the causal link between the two.

        From Reporting to Governance and Risk Allocation

        Environmental, Social and Governance (ESG) considerations are playing an increasingly influential role in how businesses operate, invest, and manage risk, especially within the European Union, where corporate sustainability and responsibility regulation have been on the agenda in recent years.

        With the adoption of the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD), many companies anticipated a significant shift in compliance. Since then, the EU has introduced simplification measures to streamline reporting and due diligence obligations, reduce the administrative burden, and improve proportionality, particularly for small and medium-sized enterprises (SMEs), while maintaining the core sustainability objectives.

        While opinions may differ regarding the evolution of environmental, social, and governance (ESG) in EU regulation and the subsequent postponements of reporting obligations, regulatory developments appear to have, in practice, supported a shift in perspective. Sustainability is no longer viewed solely as a reporting requirement, but increasingly as a matter of governance, strategy, and risk allocation. This development is welcome, as the regulatory framework’s underlying objective is to advance the green transition, which in turn requires a change in how companies integrate sustainability into their decision-making and operations.

        This focus on sustainability influences businesses of all sizes, including SMEs. Even companies not directly subject to the CSRD or CSDDD anticipate that ESG requirements will be passed down through the supply chain. Many non-reporting SMEs are already embedding sustainability practices, and this trend is likely to continue. In other words, sustainability policies are already affecting companies well before any formal reporting obligations kick in.

        Environmental, Social, and Governance in Contract Architecture

        One of the key means of implementing environmental, social, and governance obligations and objectives in day-to-day business operations is through commercial contracts and the requirements and commitments embedded in them.

        Even where a company itself is not directly subject to extensive reporting or due diligence obligations, corporate sustainability and responsibility expectations flow through the market via contractual relationships. Larger undertakings within the scope of CSRD and, in due course, the CSDDD require contractual assurances, information rights, and cooperation from their business partners, including SMEs operating within their supply chains. As a result, corporate sustainability and responsibility become a question of contractual architecture. Companies must consider not only price mechanisms, liability caps and termination triggers, but also how environmental, social and governance risks and obligations are addressed and allocated between the parties through legally enforceable contractual terms.

        Translating Policies into Binding Obligations

        A typical starting point is the incorporation of a code of conduct or sustainability policies into commercial contracts, often by reference and through an express obligation on the contracting party to comply with them. From a legal standpoint, this raises important drafting questions. Many codes are drafted as high-level public statements. When such policies are converted into contractual commitments, their wording, scope, and hierarchy relative to the main agreement require careful consideration. The obligations must be sufficiently clear to define the parties’ expectations, coherent with other contractual provisions, and proportionate to the commercial relationship. The obligations must also be capable of practical implementation and effective monitoring in the context of the agreement.

        In practical terms, this may mean requiring the supplier to comply with specific labour standards, maintain documented environmental management procedures, report on emissions data, ensure traceability of key raw materials, or allow reasonable access for audits. Clearly defining what is expected, how compliance is demonstrated, and what consequences follow from non-compliance is essential for the clause to function effectively. Otherwise, clauses that appear comprehensive in theory and ambitious in scope may offer limited enforceability in practice, and their impact may remain marginal if compliance cannot be effectively monitored and verified. If policies are not properly translated into binding and operational obligations, the company risks a mismatch between what it promises publicly and what is actually required under its contracts. This may undermine consistency, weaken risk management, and expose the company to reputational and governance risks if its own stated principles cannot be enforced within its supply or distribution chain.

        As part of this process, companies must also consider the protection of trade secrets and confidential information. For example, broad audit or data-reporting obligations may raise concerns about sensitive business information. Contractual terms should balance transparency with the need to protect legitimately proprietary data. Clauses such as confidentiality agreements or carve-outs for trade secrets can be used to ensure that sharing ESG-related information does not compromise confidential business information or competitive advantages.

        Environmental, Social and Governance Clauses Across Different Contract Types

        Besides codes of conduct and sustainability policies, environmental, social and governance-related clauses increasingly take more tailored and transaction-specific forms. In shareholder agreements, sustainability objectives may be reflected in governance structures or even linked to financial outcomes, for example by aligning dividend policies or incentive mechanisms with agreed climate targets. In employment contracts, obligations may extend beyond general compliance and include participation in corporate sustainability training programmes or adherence to internal sustainability guidelines as part of performance expectations.

        In supply and manufacturing agreements, environmental, social and governance provisions may address traceability of raw materials, emissions reporting, waste management, energy efficiency standards or the right to replace a supplier if its environmental practices materially conflict with the contracting party’s sustainability commitments. Such contractual mechanisms increasingly affect SMEs operating as suppliers, as ESG expectations pass through the supply chain.

        Construction contracts often include detailed requirements regarding material selection, lifecycle impacts, carbon footprint calculations and recycling or waste reduction procedures. For example, in Finland, legislation imposes low-carbon and energy efficiency requirements for new buildings, and a party undertaking a construction project is subject to mandatory reporting obligations relating to construction and demolition waste. These statutory requirements are typically reflected and implemented in the relevant project and construction contracts.

        Across these different contract types, the practical significance is consistent. Environmental, social and governance considerations move from the level of general policy into legally enforceable obligations tailored to each specific legal relationship. Contracts function as a mechanism for allocating responsibility, managing compliance risk and aligning commercial incentives with sustainability objectives.

        Proportionate Monitoring and Audit Rights

        In the contractual implementation and monitoring of environmental, social and governance obligations, audit and information rights play a central role. They are closely linked to effective oversight and form an integral part of a coherent contractual framework. In practice, companies typically seek access to relevant data from their business partners and, where appropriate, establish inspection or audit rights to enable meaningful monitoring and verification, whether conducted directly by the company or, commonly, by an independent expert appointed for that purpose.

        However, such arrangements must remain balanced. Overly burdensome provisions may needlessly disrupt day-to-day operations and reduce the willingness to cooperate, particularly for SMEs with limited administrative capacity. By contrast, well-designed mechanisms that balance transparency with confidentiality and operational feasibility are more defensible and more likely to function effectively in practice.

        Contractual Remedies

        As a general principle, the consequences of a breach are determined by the terms agreed between the parties. In practice, the parties will typically first seek to resolve the matter through discussion and good faith negotiations, allowing the non-compliant party an opportunity to clarify the situation and implement corrective actions within a reasonable timeframe. If negotiations do not lead to a resolution, it may be appropriate to proceed to stronger measures, such as contractual penalties, indemnification obligations, price adjustments, temporary suspension rights or other agreed sanctions, applied in light of the nature and severity of the breach.

        The contract should clearly define what constitutes a breach, how it is assessed and what remedies are available in each scenario. Clear and proportionate step-by-step remedy structures enhance legal certainty, reduce the risk of disputes and ensure that material or repeated breaches may trigger more significant consequences, including termination where justified.

        Strategic and Voluntary Environmental, Social and Governance Commitments

        In the current EU landscape, implementing ESG considerations in commercial contracts is no longer simply a matter of reacting to directives. It is a broader exercise in risk management and corporate governance. Even as the implementation details of the directives may continue to evolve, market expectations, financing conditions and reputational considerations remain key drivers of sustainability integration.

        In addition, some companies choose to position themselves as frontrunners in sustainability for strategic and reputational reasons. They may therefore incorporate voluntary environmental, social and governance mechanisms and requirements into their contracts that go beyond, or are not directly derived from, binding directives. By doing so, they signal to investors, customers and other stakeholders that sustainability is treated as a core business priority rather than merely a compliance obligation.

        At the same time, it is important to recognise the practical limits of such commitments. Ambitious sustainability requirements may be more challenging for SMEs with limited financial and administrative resources. Meeting extensive reporting, certification or traceability standards can require investments in systems, personnel and external expertise. If contractual expectations are not calibrated to the size and capacity of the counterparty, they may limit the ability of SMEs to participate in certain supply chains. A balanced and proportionate approach helps ensure that sustainability objectives remain achievable and commercially workable across the contractual chain.

        Conclusion

        For legal practitioners, the central task is not to increase the number of environmental, social and governance clauses as such, but to ensure their quality, coherence and practical relevance. The objective is to design contractual mechanisms that are proportionate, enforceable and aligned with the company’s actual risk profile, industry context and sustainability priorities. Commercial contracts remain one of the most concrete tools for translating sustainability strategy into operational practice. Moreover, every contract lawyer should understand and apply key sustainability principles in their work, ensuring that ESG commitments become integral to legal advice and contract drafting.

        The Strait of Hormuz is likely the most strategically important point for the global oil trade. In fact, approximately 20% of the world’s oil and gas passes through this narrow passage between the Gulf of Oman and the Persian Gulf every day.

        Following the outbreak of war in the region, the impact on energy markets was almost immediate: oil prices quickly rose above $100 per barrel, and it is unclear how high they may climb in the coming weeks and months. As a result, transportation, production, and procurement costs are rising across industrial supply chains in many sectors.

        For many companies engaged in international trade, this phenomenon creates a very real problem. Contracts signed months (or years) earlier—perhaps at a fixed price—must be fulfilled in a completely different economic context.

        A manufacturer that sells goods for delivery in six or twelve months may find itself producing and shipping at much higher energy costs, while the price agreed upon with the customer remains unchanged.

        This is a situation that recurs cyclically, for various reasons: from the COVID-19 pandemic to the subsequent raw materials crisis, and on to current geopolitical tensions.

        When the increase in costs is so sudden and significant, a question inevitably arises: must the contract still be performed under the original terms, or is it possible to suspend or renegotiate the agreement to adapt it to the new circumstances?

        The answer depends on several factors: first and foremost, on what the parties have (or have not) provided for in the contract, but also on the law applicable to the relationship and on the interpretation that judges or arbitrators may give to the rules in the event of a dispute.

        Force Majeure and Hardship: Two Different Concepts

        When extraordinary events occur—such as a war, an energy crisis, or the disruption of a trade route—many operators immediately invoke force majeure. However, in most cases, these situations fall instead under the category of hardship.

        It is therefore essential to distinguish between these two situations.

        When an Event Constitutes Force Majeure

        Force majeure applies to cases where an extraordinary and unforeseeable event makes it impossible to perform the contract.

        The characteristics of the grounds for exemption from liability depend on the law applicable to the commercial relationship, but generally require:

        • unpredictability of the event;
        • the event being beyond the affected party’s control;
        • the impossibility of avoiding or overcoming the event through reasonable efforts.

        Typical examples include:

        • orders from authorities requiring the suspension of production
        • embargoes or export bans
        • logistical disruptions caused by war

        In these situations, performance is not merely more costly: it becomes objectively impossible. The consequence is that the party unable to perform is generally exempt from liability for the duration of the event.

        Hardship

        The situation is different when performance of the contract remains possible but becomes economically much more burdensome.

        The concept of hardship is generally based on four prerequisites:

        1. an event occurring after the conclusion of the contract
        2. unpredictability and extraordinary nature of the event
        3. a substantial alteration of the economic balance of the contract
        4. excessive burden of performance, but not impossibility

        A sharp increase in the price of oil, gas, or other raw materials often falls into this category.

        Goods can be produced and delivered, but doing so may entail costs far higher than those anticipated when the contract was signed.

        The ripple effect along the international supply chain

        In global industrial supply chains, the same goods are often the subject of a series of consecutive contracts.

        The manufacturer sells to a trader, who sells to a processing company, which resells to an importer in another country, who in turn distributes the product to the end market.

        When a hardship event occurs—such as a sharp rise in energy prices—the effect tends to ripple throughout the entire supply chain.

        The first party affected by the cost increase will try to pass the increase on to its contractual counterpart, who, in turn, will find themselves in the same situation with the next link in the chain.

        The risk is clear: one of the operators in the middle of the chain may face increased upstream costs without being able to pass them on downstream.

        This is one of the most common problems in international supply chains.

        What happens if there is no clause regarding price fluctuations

        In commercial practice, it often happens that parties operate on the basis of orders and order confirmations without a formal written contract, or that a contract exists but contains no provisions regarding price fluctuations or hardship.

        In such cases, when costs increase sharply, it is necessary to determine which law applies to individual sales contracts across the supply chain.

        This can lead to very different situations:

        • one law may allow for price revision or termination of the contract
        • another law aplicable to a second contract may not provide for equivalent remedies
        • a third contract may contain much more restrictive contractual clauses

        The practical result is that an operator in the middle of the chain may face a price increase from their supplier without being able to pass it on to the customer.

        A Common Legal Framework: The Vienna Convention on the International Sale of Goods (CISG)

        Fortunately, many international sales contracts are governed by the 1980 Vienna Convention on the International Sale of Goods (CISG).

        The convention has been ratified by 97 countries, including Italy and most major trading partners, such as the U.S., Canada, China, Germany, France, Spain, etc.

        The central provision is Article 79, according to which a party is not liable for non-performance if it proves that the non-performance is due to an impediment:

        • beyond its control
        • unforeseeable at the time of the conclusion of the contract
        • unavoidable or insurmountable

        Traditionally, this provision has been applied to cases of force majeure.

        In recent years, there has been debate over whether it can also be applied to cases of hardship, but international case law tends to be very cautious.

        International case law on Hardship

        Court decisions reflect a rather strict approach.

        In some cases, even very significant increases in raw material costs have not been considered sufficient to modify or suspend the contract.

        The reasoning is simple: those who operate professionally in international trade must take into account a certain degree of market volatility.

        Only when the increase in costs exceeds an exceptional and unforeseeable level such as to radically alter the balance of the contract can hardship be invoked.

        One of the most frequently cited cases is the Belgian Supreme Court’s decision in the Scafom case, which recognized the right to renegotiate the contract following a 70% increase in the price of steel.

        However, such cases are relatively rare.

        Generic clauses that serve no purpose

        Many contracts contain hardship clauses copied from standard templates (boilerplate).

        The problem is that these clauses often:

        • list the effects of hardship
        • but do not define when hardship actually occurs

        The result is that, when prices rise, the parties may have very different opinions on what constitutes an “exceptional” increase and whether the event in question was “unforeseeable” or not.

        The clause, therefore, does not resolve the issue, but defers it to discussion between the parties and, in the event of a failure to reach an agreement, to the courts or arbitrators.

        What criteria can define a hardship situation

        To make the clause truly effective, it is useful to establish objective parameters.

        Among the most commonly used in international contracts:

        • an increase or decrease in the price of a raw material beyond a certain threshold (±20% or ±30%)
        • an increase in transportation or logistics costs within certain limits;
        • significant fluctuations in the exchange rate beyond a specified range;
        • the introduction of tariffs or trade restrictions

        These parameters, linked to tolerance ranges, allow the parties to quickly and unambiguously identify a hardship event.

        Remedies in the Event of Hardship

        An effective clause should also address how to handle the situation.

        The most common solutions are:

        • renegotiation of the contract in good faith
        • apply an automatic price adjustment
        • appointment of an independent third-party expert to determine the new price
        • temporary suspension of the contract
        • right of withdrawal if no agreement is reached

        These tools allow the parties to manage the crisis without resorting to litigation.

        Audit of existing contracts: what to do now

        At this point, the practical question becomes: how should we manage the issue in existing business relationships?

        The first step is to conduct an audit of existing contracts with suppliers and customers.

        1. Introduce comprehensive contracts in new relationships

        If the relationships are governed solely by purchase orders and order confirmations, it is advisable to take this opportunity to draft comprehensive international sales contracts that include:

        • a hardship clause
        • warranty provisions
        • remedies for breach
        • limitations of liability

        2. Update existing contracts

        If the relationship is already governed by a contract, you should check whether a hardship clause exists.

        If not, it may be useful to propose to the other party:

        • a new contract, or
        • a contract addendum dedicated to managing price fluctuations.

        This helps prevent future conflicts and provides both parties with an effective tool to manage potential price shocks along the supply chain.

        Conclusion

        Commodity and energy crises demonstrate how exposed international contracts are to sudden changes in economic conditions. When a contract does not clearly address hardship management, the risk does not disappear; it simply shifts along the supply chain until it settles on the weakest link.

        For this reason, companies operating within international supply chains should view the hardship clause as a strategic tool for managing contractual risk. A well-drafted contract does not eliminate market volatility, but it allows the parties to address it with clear rules, reducing uncertainty and preventing disputes.

        Executive Summary

        The African Continental Free Trade Area (AfCFTA) remains one of the most ambitious integration projects in the world. Yet, several years into its operational phase, it has not (yet) delivered the structural shift many expected. A recent analysis underscores the gap between political momentum and economic reality: implementation remains uneven, the agreement is still used by only a portion of participating states, and non-tariff barriers and infrastructure deficits continue to dominate the cost of doing business across borders.  For Egypt, the opportunity is still real — but it depends less on treaty headlines and more on enabling conditions: trade logistics, customs efficiency, regulatory convergence, and competitive industrial capacity. 

        Looking Back: The Promise of a Single African Market

        When the AfCFTA was launched, expectations were understandably high. A continent-wide trade framework was supposed to reduce tariffs, facilitate trade in goods and services, and strengthen regional value chains — with the broader goal of moving African economies up the value ladder.

        In my 2022 article, I asked whether AfCFTA could become a game changer for Egypt, given Egypt’s industrial base, strategic geography, and the potential to diversify export markets beyond traditional partners. (For background, see the earlier article here”).

        The Reality Check: Intra-African Trade Remains Structurally Weak

        Several years later, the interim assessment is sobering. As the Frankfurter Allgemeine Zeitung (FAZ) recently put it, AfCFTA is not a “game changer” yet, and only about half of member states currently meet the practical prerequisites to trade under the agreement.

        A deeper reason is structural: no other world region trades so little with itself, and while statistics may undercount informal cross-border flows (especially in food), the overall picture remains unchanged.

        Trade integration cannot deliver transformative outcomes if production, logistics, and institutions do not support scale.

        Implementation Has Been Slow — and Often Symbolic

        Operationalisation did not start with full-scale liberalisation. Instead, the AfCFTA began with a pilot approach: the Guided Trade Initiative (GTI) launched in October 2022, initially with eight states, later joined by additional countries, including Nigeria and South Africa by spring 2025.

        The GTI created valuable learning effects, but it also underlined a key point: early progress was often presented through symbolic deals, while product coverage and volumes remained limited. FAZ highlights that only selected goods could be traded duty-free and that key sectors remained constrained for a long time due to missing or unresolved technical rules.

        A pilot, however, cannot substitute for full operational certainty — the kind businesses need to restructure supply chains and invest.

        Tariffs Are Not the Main Barrier — Trade Costs Are

        AfCFTA is frequently discussed in terms of tariff liberalisation. Yet, evidence suggests that the largest gains do not come from tariffs but from reducing non-tariff barriers and improving trade infrastructure.

        FAZ points to a central reality: tariffs tend to add around 20–30% to intra-African trade costs, whereas non-tariff costs can be far higher — driven by bureaucracy, lack of harmonised standards, inefficient border processes, and transport barriers.

        This is the crux: even with reduced tariffs, trade will not expand meaningfully if goods still cannot move cheaply, quickly, and predictably.

        Integration Complexity and Distributional Politics

        Africa’s integration landscape is shaped by multiple overlapping regional economic communities and trade regimes. This creates legal and administrative complexity — often described as an integration “spaghetti bowl.” FAZ notes the challenge of coordination and the continued fragmentation of rules.

        There is also a political economy dimension. Intra-African trade is heavily influenced by a small number of larger economies — and the distribution of benefits matters. FAZ highlights the dominance of major players (notably South Africa) and the concern that tariff liberalisation alone may entrench existing industrial advantages.

        Where governments expect asymmetric outcomes, resistance often takes the form of delay, narrow implementation, or persistent non-tariff barriers.

        What This Means for Egypt: The Opportunity Is Real — But Conditional

        Egypt’s strategic case for AfCFTA participation remains strong: industrial potential, geographic location, and the opportunity to access and shape growing markets. But the experience so far suggests that the treaty text alone does not generate trade flows.

        For Egypt’s private sector, the decisive factors are practical:

        • predictable and efficient customs clearance and border procedures,
        • logistics corridors and port efficiency,
        • regulatory convergence (standards, certification, compliance),
        • stable access to trade finance and payments,
        • competitive energy and production conditions for manufacturing and processing.

        AfCFTA can support these developments — but it cannot replace them.

        The “Game Changer” Pathway: What Must Happen Next

        FAZ concludes that AfCFTA will only become truly impactful if it is paired with the fundamentals: major infrastructure investment, stronger production and processing capacity, and a credible industrial policy.

        At the same time, Africa faces a classic chicken-and-egg problem: without development there is limited investment appeal; without investment there is limited development.

        For Egypt and its partners, a pragmatic strategy would be to:

        1. treat AfCFTA as a platform for real trade-cost reduction, not only tariff debates;
        2. focus on a limited number of scalable corridors and sectors where regional value chains can realistically grow;
        3. strengthen implementation capacity so that preferences become usable for firms — especially SMEs;
        4. enhance legal certainty and dispute resolution reliability for cross-border commerce.

        Conclusion

        AfCFTA remains a landmark achievement in terms of political commitment. But as of today, it has not yet been the “game changer” many hoped for.

        For Egypt, the key question is no longer whether AfCFTA is visionary — it is. The question is whether governments and businesses can translate it into lower real trade costs, higher competitiveness, and bankable cross-border transactions. If those enabling conditions improve, AfCFTA’s promise can still become commercial reality.

        After “Liberation Day,” many foreign companies offered discounts to American importers to help them offset the tariffs. A few months later, the US Supreme Court declared the „reciprocal“ tariffs unlawful, but on the same day, President Trump announced new tariffs. In this article, we provide a practical overview of how to handle various scenarios, shifting from a reactive, unstructured approach to deliberate management of price volatility and trade flows caused by the introduction, adjustment, and removal of tariffs.

        Tariff Sharing agreements

        For a long time, the question has been straightforward: who absorbs the extra customs cost? The exporter? The importer? Both? The question remains important, but today it is incomplete.

        The new scenario, in light of the recent ruling by the US Court of Justice on March 20, 2026, is: what happens if that duty is then canceled and refunded? If the cost was shared between the parties, the benefit of the refund must follow a consistent logic. In the absence of a clear agreement on this point, however, there is a risk of economic misalignment that could compromise the commercial relationship.

        Let’s imagine an Italian winery that sells its products to a US importer. Following the introduction of reciprocal duties, the parties have decided that the exporter will grant an extraordinary discount of 7.5%, explicitly motivated by the need to share the impact of the duty. The commercial relationship continues, volumes remain stable, and the importer avoids passing on the entire increase to the end customer.

        As a result of the Supreme Court ruling (or, in the future, another ruling or administrative decision), the importer obtains a refund of the duties paid during that period.

        If no formal agreements have been made on this point and the documentation refers generically to a „commercial discount“ and says nothing about reimbursement, the situation afterward may be difficult to reconstruct and, above all, could lead to commercial tension. As a result, a positive development (the cancellation of the duty and the right to reimbursement) becomes a problematic factor that jeopardizes the relationship.

        Is the exporter entitled to a refund of the discounts granted to mitigate the duties?

        In the absence of a different agreement between the parties, the right to reimbursement belongs to the party who paid the duty, i.e., in most cases, the importer. Therefore, there is a risk that the importer will enjoy a double benefit (the discount and the duty refund), while the exporter will get nothing.

        For this reason, it is essential that the parties do not limit themselves to negotiating prices and discounts, but also establish the consequences of the adoption, modification, or revocation of duties on the contract, including any refunds.

        To achieve this, the first step is to accurately classify and document the discounts granted. If only a „commercial discount“ appears in emails, commercial orders, credit notes, and invoices, it will be harder to later argue that this discount was actually an extraordinary, temporary contribution related to the duty. Conversely, if the documentation and contract specify that it is a tariff sharing or tariff mitigation measure, identifying the amounts to be refunded after the fact becomes much simpler.

        The goal is to create a clear view of the trend in discounts and payments so that, if needed, financial flows can be adjusted to align with the original terms of the agreement: if the exporter has helped cover a cost that then, in whole or in part, does not end up materializing, they will be eligible for a refund of the contribution paid.

        The contract will therefore include, in addition to the Tariff Sharing clause, a Tariff Reimbursement Allocation clause, which states that if the importer receives a refund, credit, or any other economic benefit related to the duty for which the exporter has granted a discount, the importer must return the corresponding portion of the benefit to the exporter in full. or proportionally, depending on how the parties intend to distribute risk and incentive.

        Importer’s responsibility to seek reimbursement

        It is unclear whether, in the case of US reciprocal duties, importers can simply file an administrative claim to get a refund or if legal action will be required. The latter seems more probable.

        Generally, obtaining a duty refund involves action, deadlines, documentation, and coordination with brokers and customs consultants. In most cases, the entity controlling the process is the importer (or someone acting on their behalf).

        This raises a sensitive but very real issue: if the importer knows that they will have to invest time and money to obtain a refund, only to then have to share the benefit with the exporter, their incentive to take action may be reduced. To prevent this inertia  the contract should contain an express obligation to take action, set out as a duty of best efforts or commercially reasonable efforts.

        For example, the contract should specify that the importer must inquire about the conditions and time limits of the process, keep relevant documentation, regularly inform the exporter about the progress of the initiatives, and not unilaterally waive or reduce the claim if it affects the exporter’s economic rights.

        Preventive Agreements on Litigation and Cost Allocation

        When reimbursement involves a lawsuit or structured legal action, the obstacles are organizational and financial: who decides if and when to proceed, who selects the lawyers, who pays the costs upfront, how the net recovery is divided, and who has the final say on a settlement. This generally applies to all contracts, not just this case: dispute resolution methods must be addressed and agreed upon before the problem arises.

        Otherwise, the dispute resolution process risks becoming a secondary improvised negotiation at the worst time — when the parties are already under pressure from margins, cash flow, and regulatory uncertainty. As a result, it becomes much harder to reach an agreement.

        How to handle new tariffs and their potential cancellation

        To safeguard against uncertainty, the agreement should be organized into two stages.

        • The first stage regulates the immediate impact of the change in scenario, for example, the introduction of a new tariff or its increase (renegotiation, cost sharing, automatic adjustment : I discussed this in this article).
        • The second stage manages the possible „rollback“ (right to reimbursement, process, allocation criteria).

        This approach has a clear benefit: it does not force the parties to discuss every time the tariff regime changes or a decision to cancel tariffs is made. Instead of reacting to market changes, a tool is adopted to manage potential scenarios, which is much more resilient commercially and easier to oversee, as the rules have already been agreed upon.

        This allows the impact of duties to be regulated not as an extraordinary variable, to be agreed upon on a one-time basis, but as a structural, adaptable phenomenon that could last a long time.

        This is why it is crucial to know how to draft contracts that cover both the current situation and potential changes, including any refunds.

        Conclusion: Three practical steps for companies exporting to the US

        The first is to agree on the consequences for the contract of the introduction of a new duty, increasing it, or revoking it (renegotiation, cost sharing, automatic price adjustment, right to share the refund).

        The second is to clearly document any discount granted to offset a duty. If it remains a generic „commercial discount,“ the right to a refund if reimbursement occurs will be much harder to enforce.

        The third step is to determine what happens if the duty is canceled or revoked: the importer’s responsibility to take action to get a refund, manage the administrative process or litigation, how to divide costs, who oversees the activities of consultants and lawyers, and how the recovered funds will be allocated.

        How do you approach negotiating a trade agreement with China?

        Based on my experience, let’s examine the issues to be addressed and the main questions to ask, taking the negotiation of a trade distribution agreement as a practical example.

        Let’s start with the first issue that is important to clarify.

        Nice Business Card – But Who Is This Guy?

        Business cards, websites, printed or digital brochures, presentations, and any other materials shared in English have no official value in China.

        The company name of the counterparty and the first and last names of people representing it or acting on its behalf, written in English, are only fictitious names.

        To be certain of the company’s data and the identity of the persons, it is necessary to ask for the information in Chinese, with particular reference to the company’s business license (equivalent to the Companies House or Chamber of Commerce’s excerpt), from which the name, corporate purpose, registered and paid-up share capital, and the name of the legal representative can be inferred.

        The data can then be verified by accessing the portal of the State Administration of Industry and Commerce (SAIC) of the province where the Chinese party is based.

        This first verification is essential to ensure that you do not waste time or even run into scams (here’s an in-depth article on Legalmondo’s blog).

        If You Don’t Own Your Trademark, Someone Else Will – and Charge You for It

        Trademark First, Trade Later. China operates on a first-to-file system for trademarks, which means that the first person or company to register a trademark – not necessarily the original creator or most famous user – gains the legal rights to it. This creates a serious risk: if you haven’t registered your trademark in China, someone else might do it before you, and then either use it freely or demand a hefty ransom to give it back. Even high-profile figures like Elon Musk and Michael Jordan have been entangled in costly and protracted disputes with Chinese trademark squatters. In many cases, getting the mark back is highly complicated, and sometimes legally impossible.

        To avoid this, register your trademarks early, even before entering the Chinese market. File directly with the China Trademark Office (CTMO) and don’t stop at the English version — consider registering a Chinese character version as well, since that is how your brand will often be known locally.

        Once that base is covered, clearly state in your contract that your Chinese partner is not allowed to file a registration of any of your trademarks in China, in Latin or Chinese characters, and that he will use trademarks and IP rights in strict conformance to the contract and your instructions.

        For a deeper dive into how to effectively protect your IP rights in China, check out our detailed article on the Legalmondo blog.

        Contracts can wait. First, get on the same page

        When negotiating with a Chinese partner, it’s often a mistake to begin the conversation by exchanging contract drafts. Instead, focus first on the substance — the relationship’s commercial and technical terms. Using a clear checklist of key discussion points (such as products, pricing, delivery terms, technical standards, after-sales support, exclusivity, duration, payment terms, etc.) helps ensure that both sides are aligned on what really matters. Take detailed notes and keep minutes of the discussions, especially where and when consensus is reached, and make sure those minutes are circulated and expressly agreed upon. Once substantial agreement has been achieved on the main terms, this memo can then be handed over to your lawyer, who will translate the business understanding into clear and coherent contractual language. This approach saves tons of time, as it helps avoid unnecessary back-and-forth on legal language before the core deal is in place.

        Think Your NDA Covers You in China? Think Again

        Yes, they are—and often underestimated. A well-drafted Non-Disclosure Agreement (NDA) is essential when the parties plan to exchange confidential information, such as technological know-how, commercial strategies, supplier data, or client lists. Especially in the early phases of negotiation or cooperation, before a main contract is signed, an NDA helps protect intellectual and business assets.

        However, as with all contracts in China, a generic NDA template copied from other jurisdictions will likely be of limited use. To be truly effective, the NDA must be adapted to the specifics of the Chinese legal environment. This includes ensuring that it is enforceable in China: the NDA should include the proper dispute resolution mechanism (see below on why you should consider applying Chinese law and litigating in China), and it must specify clear, valid, and proportionate penalties for breach. In Chinese practice, stating specific contractual penalties (liquidated damages) is often more effective than vague references to compensation, as courts and arbitrators in China tend to enforce these more reliably if they are reasonable.

        While a good NDA is useful, it often falls short in China’s manufacturing and sourcing landscape. This is where the NNN Agreement – standing for Non-Disclosure, Non-Use, and Non-Circumvention – becomes critical. Unlike standard NDAs that primarily focus on confidentiality, an NNN Agreement is designed to address the unique risks of doing business in China. It prevents the recipient from not only disclosing confidential information but also from using it for their benefit or bypassing the disclosing party to work directly with suppliers, clients, or partners. Which, in China, is a very real risk.

        This broader scope is vital when dealing with Chinese manufacturers or intermediaries, who may otherwise be tempted to replicate products or contact customers directly or through third parties. As seen with the NDA, also the NNN Agreement must be drafted in Chinese, governed by Chinese law, and enforceable in Chinese courts -otherwise, it may offer little real protection.

        Joint venture? Easy, Cowboy

        A joint venture is often the first proposal that comes up when negotiating with a potential Chinese partner. It seems appealing: sharing risks and investments, accessing the local market with an ally, leveraging their knowledge and network of contacts. But the reality is often very different from what it appears to be.

        A joint venture is a complex, expensive, and rigid corporate structure that requires significant investments of money, time, and human resources, as well as the ability to continuously manage often divergent interests among the partners. The vast majority of Sino-Foreign JVs have gone wrong, or will go wrong. Or very wrong. First and foremost, because the JV is usually managed by the Chinese partner, and exercising effective control over the company’s operations is a very challenging undertaking.

        Before going down this road, it is essential to ask yourself a few questions: Is the joint venture really indispensable for developing this business in China? (Spoiler: generally, no). Are there less restrictive and risky alternatives, such as a distribution agreement or a licensing agreement? (Yes, almost always). And above all: how well do we really know our potential partner?

        A joint venture should only be considered if it is strictly necessary for the project’s development, after carefully verifying the commercial viability and the reliability of the Chinese partner, and ensuring the ability to maintain effective control over the JV’s operations.

        It is better to start with simpler and more flexible forms of collaboration to test the market and the relationship with the other party before committing to such a demanding investment. Otherwise, the mirage of the joint venture risks turning into a nightmare that can be very costly.

        Memorandum of Understanding: Where Good Intentions Become Bad Contracts

        A Memorandum of Understanding (MoU) is a helpful tool at the early stage of a commercial relationship. It serves as a roadmap for future negotiations, where the parties outline the main principles and intentions that will guide the drafting of the final agreements. When used correctly, an MoU can significantly facilitate negotiations by ensuring that both sides commit to negotiating the agreement in good faith and share a common understanding of key points such as pricing models, territorial scope, exclusivity, milestones, budget, or performance expectations.

        However, an MoU must be used for what it is: a preparatory document, not a binding contract. Care must be taken to avoid ambiguity and unintended commitments. The text should clearly specify that the parties remain free to conclude – or not – the final agreements and which clauses are non-binding – such as the commercial framework or indicative timelines – and which provisions are binding, typically confidentiality, exclusivity during the negotiations (if agreed), governing law, and dispute resolution. A poorly drafted MoU, which includes overly precise and complete terms, can be misinterpreted as a final agreement, creating unnecessary legal risk. So yes, MoUs are valuable – but only when used correctly. If you’d like to know more, go deeper by reading this article.

        Bad Drafts, Big Headaches, Poor results

        Draft agreements used in China are often copied and pasted from incomplete, superficial, poorly organised templates written in bad English, which often do not match the Chinese version of the contract.

        Correcting and integrating these drafts is complicated and more time-consuming than starting from a good template, with suboptimal results.

        It would be better to propose a consistently constructed text and ask the other party to propose any changes and additions to this draft.

        Your Western Contract Template Won’t Work Here

        Even if an English-language contract is perfectly valid, there are many reasons why using contract templates built for other countries in the Chinese market is inadvisable.

        The first is the fact that Anglo-Saxon-based agreements, such as those for the U.S., refer to a common law system (which is based on judicial decisions and case law precedents) that is very different from that of civil law countries (such as China and Italy), which derives from the Roman legal tradition, based on a codified set of written laws.

        It follows that the layout of an agreement on the Anglo-Saxon model is different, much more detailed, and wordy than that of a typical agreement based on a civil law system. Since contract negotiations in China are generally lengthy and complex, working on redundant and complicated text at the outset does not help.

        If we stick to the example of a distribution contract, it should be added that it is advisable to apply Chinese law to provide for arbitration based in China (e.g., at CIETAC) or in Hong Kong or Singapore (third countries, where, however, the costs of the procedure increase significantly) as the mode of dispute resolution. So, the contract should be built on a model that conforms to the law that will apply to the relationship.

        Home Court Advantage Won’t Help You in China. In fact, quite the opposite

        This is a typical point of disagreement in the negotiation of an international contract: the parties aim to have the law of their own country apply, and to stipulate that any disputes be adjudicated by their domestic courts.

        In our case, insisting on the application of Italian (or any other foreign) law and state court is not a good idea: it should be considered, in fact, that a distribution agreement is carried out, for the vast majority, in the country where the distributor operates and where the products are sold (in our case, in mainland China).

        In disputes, the parties‘ (particularly the manufacturer’s) interest is to obtain a quick decision by the adjudicating body, especially if situations requiring immediate protection (such as unfair conduct or counterfeiting of trademarks and patents by the distributor) are ongoing.

        None of this is possible if one goes to an Italian judge (with lengthy litigation time and the need then for a complex and costly process to recognise and enforce the decision in China); on the contrary,  an arbitration in China, applying Chinese law, allows one to reach a decision quickly (on average 6-9 months) and, if necessary, also to obtain urgent measures to stop any unfair conduct.

        Chinese Law Isn’t a Black Box (If You Know What You’re Doing)

        The lawyer assisting you should know it.

        Therefore, it is not a leap in the dark, and one should not fear surprises.

        In addition, it should be remembered that an agreement is primarily based on the covenants that the parties have written in the contract; therefore, if the contract has been well drafted, the rules to be applied are clear.

        Finally, if we consider distribution agreements, keep in mind that they are a framework contract, within which a series of separate product sales contracts are concluded. If both countries are contracting parties to the 1980 Vienna Convention on the International Sale of Goods (CISG), then the uniform, clear, and balanced rules of the convention apply automatically, just don’t opt out!

        One Contract, Two Languages

        The contract is also valid in English only.  However, it is undoubtedly advisable to draft a Chinese version with facing text.

        This is for several reasons: first, it prevents the Chinese party from having to arrange for a translation of the text during negotiations for its own internal use (top managers often do not speak English), thus slowing down the various steps of negotiations.

        Also, to ensure that the Chinese side fully understands the agreement’s content and to avert misunderstandings (real or instrumental) about the interpretation of certain covenants.

        Finally, it should be borne in mind that if the contract were later to be used before a court or administrative authority in China, the only language admitted would be Chinese; for this reason, it is better to have already a text agreed and signed by the parties in Chinese as well, rather than having to prepare a unilateral translation later.

        Sign. And chop

        Does the contract need to bear the company’s official stamp? Yes, and this point is absolutely crucial. In China, a company’s official „chop“ (the red-ink stamp) is equivalent to a signature and is conclusive proof that the person signing the contract has the authority to represent the company. A signature alone, even from someone with an important-sounding title, may not be sufficient if it is not accompanied by the official chop. Without it, the contract might later be challenged or even considered void. Before signing, always verify that the stamp used matches the one registered with the company’s business license or official corporate records, and ensure that the stamp is applied on every page or at least on the signature page, in line with local practice.

        Don’t Let Your Contract Collect Dust

        Things change fast, especially in China. New products are added, market conditions evolve, people leave the company, new competitors emerge on the horizon, and so on. Companies constantly adapt to the new conditions, and so must the contract.

        Any change in the relationship should be formalized correctly. To avoid misunderstandings and disputes, it’s advisable to include an integration clause in the contract, specifying that any amendments or additions will only be valid if agreed in writing, signed by the parties’ authorized representatives, and annexed as an addendum to the original agreement.

        It’s not enough to include this clause – you must follow it consistently. If things change, agreements reached verbally, through Wechat messages, and through email exchanges may make things complicated if they are not formalised adequately according to the procedure set out in the original contract.

        If you’d like to go deeper, check out this article.

        Rising Oil Prices and International Contracts: How to Manage Hardship in Global Supply Chains

        14. März 2026

        • Italien
        • Verträge
        • Vertrieb
        • Supply Chain

        Foreign franchisors entering into franchise agreements in Spain should take careful note of the content of the judgment issued by the Provincial Court of Córdoba on November 20, 2025, and require that the partner(s) and the directors of the franchisee company expressly guarantee and indemnify the payment of any debts arising from the franchise agreement.

        Spanish corporate law establishes the principle of liability for the directors of corporations or limited liability companies when the company is subject to dissolution (for example, due to losses that reduce equity to less than 50% of the share capital) and, despite this, they fail to convene a meeting to adopt corrective measures (dissolution or capital increase).

        In the case of the aforementioned ruling, the franchisor was unable to collect the debt arising from the franchise agreement from the franchisee due to the latter’s insolvency; so it decided to claim that debt from the company’s administrator based on the provision mentioned above, that is, due to the fact that the franchisee company was facing dissolution due to losses and the administrator had not convened a shareholders’ meeting, as was his obligation, so that the shareholders could decide how to resolve the situation.

        The ruling we are discussing from the Court of Appeal of Córdoba upholds the lower court’s decision and dismisses the franchisor’s claim against the sole administrator of the franchisee company, stating that:

        With regard to liability for corporate debts under Article 367 of the Capital Companies Act, the court recognised the existence of the corporate debts, the presence of grounds for dissolution, the breach of the legal obligations by the corporate administrator, and his liability, but found that a ground for exoneration from liability existed in accordance with the doctrine of “known risk.” Thus, it was noted that the plaintiff is a franchisor and X. S.L. was the franchisee, and it was evident from the electronic communications that the franchisee was under constant monitoring and the franchisor was aware of the risk involved in the operations, halting the shipment of goods (clothing) as soon as the limits of the guarantees granted were exceeded, meaning the plaintiff voluntarily assumed the risk. For all these reasons, the claim was dismissed.

        In conclusion, and in light of the foregoing, the present franchise relationship and its conduct allow us to consider that it has been established that the franchisor (creditor) had greater knowledge of the franchisee’s (debtor’s) financial situation, beyond the information appearing in the annual accounts filed with the Commercial Registry, as it was the franchisee’s primary supplier. And this knowledge and control of the debt by the franchisor (through the increase in orders) justifies the exoneration of the corporate director’s liability for corporate debts under Article 367 of the Capital Companies Act, which leads to the dismissal of the appeal

        The legal theory or principle of Known/Accepted Risk, to which the judgment refers, holds that harm caused to a third party, with or without a contractual relationship in place, is not considered unlawful if the victim was aware of the risk and voluntarily assumed it.

        This doctrine was initially developed within the framework of tort liability: whoever engages in a risky activity and reaps its benefits must bear its negative consequences, that is, the risk—(cuius commodum, eius incommodum).

        However, case law has extended the application of this theory to the field of contractual liability, as demonstrated in the judgment under discussion.

        Therefore, since the plaintiff was aware of the defendant’s financial situation and solvency—having “monitored” its activity as a franchisor—and despite this, decided to maintain the contract’s validity, thereby increasing the debt, the ruling holds that the franchisor assumed the risk, which constituted grounds for exonerating the administrator from liability. However, more concerning than the above is that this “known risk” theory could be  considered applicable to the liability of the franchisee company itself, which could be exonerated from liability based on the franchisor’s monitoring of its activities.

        The conclusion of all the above is that, based on this application of the known risk theory, franchisors may face difficulties in claiming debts owed by the franchisee company from its directors in the event of the company’s insolvency; therefore, it is highly advisable that, when signing the franchise agreement, a joint and several guarantee for the franchise’s potential future debts be required from its directors and partners, which, moreover, is a fairly standard practice.

        In this way, the objection based on the theory of known risk would not come into play.

        Vietnam has been added to the EU list of non‑cooperative jurisdictions for tax purposes (Annex I), following the Council’s update of 17 February 2026.

        For EU companies buying goods and services from Vietnam, this is not an outright ban on trade, but rather a signal that substantially heightened tax governance scrutiny, documentation expectations, and (in some cases) more demanding payment execution will follow in the months ahead. The EU listing process is designed less to “name and shame” and more to encourage positive change through cooperation and dialogue, but once a jurisdiction is placed on Annex I, EU Member States implement “defensive measures” that can materially affect tax treatment, withholding obligations, and audit intensity for Vietnam-linked transactions.

        What the EU decision does (and does not) do

        The EU blacklist is a tax‑governance instrument: it does not prohibit EU businesses from importing goods from Vietnam or procuring Vietnamese services, and it does not alter Vietnam’s domestic tax regime, corporate income tax rules, withholding tax framework, or investment policies.

        At the same time, the EU can deepen cooperation with Vietnam on the political and economic track while still applying tax‑governance pressure through listing mechanisms, so businesses should be prepared for a “partnership plus scrutiny” environment rather than expecting the two to be perfectly aligned.

        In January 2026, the EU and Vietnam upgraded their relations to a Comprehensive Strategic Partnership, framed as a platform to strengthen cooperation across areas such as trade and investment, climate/energy, sustainable development and digital transformation-a signal that the blacklisting is a technical compliance tool, not a diplomatic rupture.

        The ideological paradox: a Socialist Republic on a tax-haven list

        Vietnam’s presence on the blacklist is striking when viewed in its broader political context. The EU blacklist was conceived after major tax-transparency scandals (the Panama Papers and LuxLeaks) to address jurisdictions that facilitate offshore structures or fail to meet information-exchange standards. In the Western imagination, “tax haven” connotes liberal microstates or offshore centres, yet Vietnam, governed by a Communist Party, now sits on the same list. This reflects the reality of Vietnam’s hybrid economic model: politically socialist, but economically pragmatic since the Đổi Mới reforms of the late 1980s, with selective tax incentives for special economic zones, high-tech investments and priority sectors that, in certain cases, can significantly reduce the effective tax burden for foreign investors. The EU’s concern is not Vietnam’s headline corporate tax rate but rather-at this stage-the absence of adequate exchange-of-information infrastructure, though the architecture of its preferential regimes has also attracted scrutiny in the past. The listing is a technical compliance issue, not an ideological one. 

        Why Vietnam was added: the listing criteria and timeline

        Vietnam has been subject to EU scrutiny since the very first iteration of the EU list in December 2017, when it was placed in Annex II (the “grey list”) alongside jurisdictions that have committed to reform but are not yet fully compliant. In October 2025, Vietnam was removed from Annex II after fulfilling its commitments on country-by-country reporting (CbCR), and appeared, at that point, to be on the path to full compliance. However, shortly afterwards-in November 2025-the OECD Global Forum published its peer review and rated Vietnam “Non-Compliant” with respect to the standard on Exchange of Information on Request (EOIR), a separate compliance area from CbCR, finding that further reforms remained outstanding and that improvements in the CbCR exchange framework were not expected before 2027. This OECD finding directly triggered the February 2026 move to Annex I-an escalation from the grey list to the blacklist, bypassing any intervening period of full compliance.

        The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), requiring compliance with AEOI and EOIR standards and membership of the Multilateral Convention on Mutual Administrative Assistance in Tax Matters; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.

        Vietnam’s response and the path to delisting

        Vietnam’s Ministry of Foreign Affairs responded publicly within days of the listing, defending the country’s tax transparency record and stating that the government is implementing a national action plan to follow OECD recommendations and expand tax cooperation with partners including the EU. Vietnam expressed readiness to engage with European authorities to ensure more objective and comprehensive assessments, and to promote cooperation for shared development and prosperity. Practitioner commentary suggests a concrete roadmap is achievable: with legislative amendments (decrees and circulars on EOIR procedures), the establishment of a dedicated EOIR unit, publication of enforcement statistics, and active technical engagement with the EU Code of Conduct Group from now through September 2026, Vietnam could realistically target removal from Annex I at the next EU review cycle in October 2026, although this timeline is ambitious and delisting is by no means guaranteed. The key point for EU businesses is that, while the listing may be relatively short-lived if Vietnam acts decisively, companies should not delay compliance preparations in reliance on early delisting-a proportionate, risk-based response is more appropriate than a wholesale restructuring of Vietnam-linked supply chains.

        How different payment types are affected in practice

        Goods (imports) are often the most straightforward in substance terms because there is usually a clear chain of documents: purchase orders, shipping documents, customs import paperwork, delivery notes, inspection/acceptance records and matching invoices.

        The risk uplift for goods is typically not about whether the purchase is real, but whether the overall supply chain and pricing remain coherent under scrutiny-for example, whether margins and intercompany arrangements around the import flow make commercial sense and are consistently documented.

        Services (outsourcing, consulting, IT development, marketing, support) tend to attract more questions because “what was delivered” is harder to evidence than a shipped product.

        If your EU entity pays a Vietnamese provider for services, expect to need a well‑organised evidence pack: a clear scope of work, time records or milestones, deliverables (reports, code repositories, tickets), acceptance sign‑offs, and a pricing rationale that matches the level of skill and effort involved.

        Royalties and IP-related payments (software licences, trademarks, know‑how, technology access) are particularly sensitive because they combine valuation complexity with cross‑border tax characterisation questions.

        Expect pressure-testing of (i) who truly owns and controls the IP, (ii) the contract chain and sublicensing rights, (iii) how the royalty rate was set using benchmarking or comparable arrangements, and (iv) whether the payment is genuinely for IP rather than a disguised service fee.

        Intragroup charges (management fees, shared services, cost recharges) are commonly the first area where tax authorities and counterparties ask for “benefit” evidence and allocation logic.

        Where Vietnam sits inside a group value chain, be ready to show why a charge exists, how it was calculated, how the recipient benefited, plus consistent intercompany agreements and transfer pricing support.

        Financing and treasury flows (interest, guarantees, cash pooling, factoring, trade finance) trigger the most intensive technical review because they involve both tax outcomes and financial crime/compliance sensitivities.

        Even where the structure is legitimate, these flows are more likely to be escalated internally for enhanced review and may require more supporting documentation before execution.

        How European banks may respond (and what that looks like in practice)

        Banks in the EU operate under a risk‑based approach to financial crime and compliance, and they may apply de-risking decisions, meaning they can choose to restrict or exit relationships or transaction types they view as exceeding their risk appetite or being operationally too costly to monitor. EU supervisory frameworks acknowledge that de-risking exists and call for proportionate, evidence-based risk assessments rather than indiscriminate blanket exclusions, but in practice banks have significant discretion.

        For an EU company initiating a bank transfer to a Vietnamese counterparty, the following discretionary measures can arise in practice, even where the payment is entirely lawful and commercially routine.

        A bank can pause execution and request additional documents before releasing funds, seeking comfort on the purpose and legitimacy of the transaction under its internal controls.

        Typical requests include the underlying contract or statement of work, invoices, proof of delivery or performance, an explanation of business purpose, and information on the beneficiary’s beneficial ownership or corporate structure.

        A bank can route the payment through manual review queues rather than straight-through processing, particularly for first-time beneficiaries, unusually large amounts, or payments with vague narratives that do not clearly describe the purpose.

        This creates operational knock-ons: late supplier settlement, goods held pending payment confirmation, or service suspension where the vendor operates on strict payment triggers.

        A bank can impose internal conditions as part of its customer-specific risk controls-for example requiring richer payment details, stricter invoice descriptors, or pre-approval workflows for Vietnam-corridor payments.

        A bank can decline to process specific transactions or decide to exit certain corridors, client types, or business models entirely as a risk-management choice. German financial institutions are described as applying enhanced due diligence, requiring full transparency of transaction purpose and ownership for Vietnam-linked payments.

        Where a payment is declined, the practical solution is often to adjust the execution setup-alternative banking channel, revised documentation pack, or modified payment mechanics-while keeping the underlying commercial relationship intact.

        EU companies are advised to develop a “Banking Compliance Pack” for Vietnam-corridor payments: a pre-assembled set of documents (contract, invoice, proof of delivery/performance, business rationale memo, and beneficial ownership information) that can be submitted proactively or in response to bank queries within hours rather than days.

        Non-tax defensive measures and EU funding implications

        Beyond tax measures, being on the EU blacklist triggers non-tax consequences that affect Vietnam’s economic relationship with the EU more broadly. EU investment programmes cannot channel funding through entities located in Vietnam, because using such an entity contradicts the core legal purpose of these funds, which are designed to promote good governance, transparency, and the fight against illicit financial flows. Affected funds include the European Fund for Sustainable Development (EFSD/NDICI), which de-risks major investments in areas like energy and digital; the InvestEU programme (which replaced the former EFSI); and the External Lending Mandate (ELM), which provides EIB loans for major infrastructure outside the EU. In addition, the General Framework for STS securitisation imposes separate restrictions on the use of entities in blacklisted jurisdictions within securitisation structures. For Vietnamese entities and their EU partners working on donor-funded or ESG-driven projects, this can be a significant constraint, as subsidiaries and other businesses in Vietnam may be cut off from these sources of EU financing.

        DAC6 reporting and public country-by-country reporting

        Cross-border arrangements involving Vietnam are now subject to heightened DAC6 scrutiny. In particular, Hallmark C.1(b)(ii) may be triggered where a deductible cross-border payment is made by an EU-based associated enterprise to a tax resident in Vietnam, subject to Member State-specific implementation of the main benefit test and other conditions. Large multinationals (consolidated revenue of EUR 750 million or more in each of the last two fiscal years) must also prepare and publicly disclose a Public Country-by-Country Report. Under the EU Public CbCR Directive, Vietnam activities must be reported separately-not aggregated as “Rest of the World”-disclosing a list of all consolidated subsidiaries, description of activities, number of full-time equivalent employees, revenues (including related-party revenue), profit or loss before tax, income tax accrued and paid, and accumulated earnings. For FY 2025 and FY 2026, Vietnam information is already reportable separately by affected multinationals.

        Country notes (alphabetical)

        Belgium: Belgium applies non-deductibility of costs, CFC rules, and participation exemption limitations linked to both the EU list and certain domestic criteria. A critical Belgian-specific rule is the reporting obligation for payments made to entities in blacklisted jurisdictions where the aggregate of such payments exceeds EUR 100,000 in the taxable period; once this threshold is met, each such payment must be reported in the annual tax return, and any payment that is not reported, or that cannot be justified on specific grounds, is not deductible. Belgium follows a dynamic approach to the EU list, meaning EU list updates take effect automatically without a further domestic step. For Belgian payers, immediate practical priorities are: (i) identifying all Vietnam-linked payment streams above EUR 100,000, (ii) ensuring the reporting mechanism in the annual tax return is in place, and (iii) building the justification file for each reported payment.

        France: France applies all four defensive measures-non-deductibility of costs, CFC rules, withholding tax, and participation exemption limitation-but via a national decree-based list that refers to the EU list while also applying additional French domestic criteria. France follows a static approach, updating its domestic non-cooperative state list through an annual Decree in the Official Journal, with tax consequences applying from the first day of the third month following publication. The last French update took place in April 2025, and at the time of writing (May 2026) no subsequent decree incorporating Vietnam has been published. A further update is expected imminently and will likely include Vietnam. Once Vietnam appears on the French list, key measures include: a 75% withholding tax on interest, royalties, dividends and service fees (counterevidence possible); denial of the participation exemption (counterevidence possible for jurisdictions meeting certain criteria); denial of deductibility of interest, royalties and service fees (counterevidence possible); and a stricter CFC rule under which the burden of proof is reversed and foreign withholding taxes cannot be credited against French CFC income. French payers should monitor the next French decree closely and prepare counterevidence files now so they are ready the moment the decree is published.

        Germany: Germany applies all four defensive measures through the Tax Haven Defence Act (Steueroasen-Abwehrgesetz, StAbwG), linked to the EU list via a Tax Haven Defence Ordinance that is updated once per year, typically at year-end taking into account the October EU list update. The expected sequence for Vietnam is: December 2026-amendment to the Tax Haven Defence Ordinance to incorporate Vietnam; from 2027 (Year 1)-stricter CFC rules and extended withholding tax of 15% (plus a 5.5% solidarity surcharge) apply to income from financing relationships, insurance or reinsurance services, legal and advisory services, and trading of goods and services; from 2029 (Year 3)-denial of the participation exemption activates; from 2030 (Year 4)-denial of deductible business expenses activates. Importantly, Germany’s extended withholding tax can override double tax treaties. The multi-year ramp-up means that immediate German impacts are CFC scrutiny and withholding tax friction on specific payment types, while the broader expense deduction denial will only bite from 2030 onwards-giving German payers time to prepare, but making early documentation investment worthwhile.

        Italy: Italy uses the EU list for monitoring and deductibility purposes under Article 110 TUIR: costs connected with counterparties in Annex I jurisdictions are generally deductible up to “normal value,” while amounts above normal value require evidence of an effective economic interest, and all such costs must be separately indicated in the annual income tax return (Modello REDDITI). Italy’s framework is directly triggered by the EU list, meaning Vietnam’s Annex I status is effective for Italian purposes from the publication of the Council conclusions in the EU Official Journal, without any further domestic implementing step being required.

        For Italian payers, service costs, royalties, and intragroup charges to Vietnam are the most sensitive categories: robust documentation of deliverables, pricing and economic rationale is essential, and accounting teams need to ensure they can cleanly isolate Vietnam-linked costs in the year-end reporting workflow.

        Malta: Malta follows a dynamic approach to the EU list, meaning Vietnam’s Annex I status takes effect automatically in Malta’s tax framework. Malta applies a limitation of the participation exemption on dividend income derived from a participating holding in a body of persons that has been resident in a jurisdiction on the EU list for a minimum period of three months during the year immediately preceding the year of assessment, subject to a counter-evidence exception based on “people functions.” Malta does not apply non-deductibility, CFC, or withholding tax defensive measures against EU-listed jurisdictions as primary tools, so the main Malta-specific concern for holding and investment structures is participation exemption eligibility and substance evidence. For Malta-based groups, the practical response is to keep board materials, contracts, and commercial rationale tightly aligned, and to prepare for more intensive counterparty due diligence (beneficial ownership, substance, and tax residency) from EU customers and financial institutions.

        Netherlands: The Netherlands applies a 25.8% conditional withholding tax on interest, royalties, and (since 1 January 2024) dividends paid to related entities in EU-listed jurisdictions or low-tax jurisdictions, as well as CFC rules with counterevidence possible. The Netherlands follows a static approach: the list applicable for a tax year is based on the EU list as it stood at the end of the preceding year, using the October update as the reference. This means the Dutch 2027 Regulation will include Vietnam only if Vietnam remains on the EU list after the October 2026 review cycle. No withholding tax consequences arise for Dutch payers immediately in 2026 as a direct result of Vietnam’s February 2026 listing, but the October 2026 review date is critical: if Vietnam remains listed, Dutch conditional withholding tax obligations will activate from 1 January 2027. Dutch payers with intragroup dividend, interest, and royalty flows to Vietnam should use the current window to restructure documentation and pricing support and to assess whether existing double tax treaty protections remain effective in light of the conditional WHT mechanics.

        Spain: Spain does not mechanically mirror the EU list, but operates its own domestic list of non-cooperative jurisdictions, which is updated separately and can include or exclude jurisdictions differently from Annex I. Spain applies a static approach, with the list specified in law. The practical implication is that the Spanish domestic tax consequences of Vietnam’s listing depend on whether and when Spain updates its domestic list to include Vietnam, rather than arising automatically from the EU Council’s February 2026 decision. For Spain-based procurement and finance teams, do not assume a one-to-one mapping between EU-list status and Spanish domestic tax outcomes, but do treat Vietnam-linked transactions as higher-scrutiny items from an audit and counterparty due diligence perspective, and invest in cleaner contracting, invoice narratives, and performance evidence for services, royalties, and intragroup charges.

         

        Practical next steps for EU companies

        1. Map exposures: Identify and quantify all payment streams relating to Vietnamese entities, broken down by payment type (goods, services, royalties, intragroup charges, financing).
        2. Understand your Member State’s rules: Confirm which defensive measures apply in the relevant EU payer jurisdiction, when they take effect (immediately or staged), whether the jurisdiction follows the EU list dynamically or statically, what relief conditions exist, and what documentation is required.
        3. DAC6 readiness: Assess whether Vietnam-linked arrangements trigger DAC6 reporting obligations (particularly deductible cross-border payments between associated enterprises) and ensure reporting infrastructure is in place.
        4. Transfer pricing and substance: Validate intercompany services, royalties and financing arrangements by reassessing pricing, benefit tests and contractual terms; strengthen contemporaneous documentation before year-end.
        5. Public CbCR messaging: If within scope, assess public CbCR disclosure implications for Vietnam operations and align tax, legal, ESG and investor-relations communications accordingly.
        6. Vendor due diligence: Implement or strengthen due diligence on Vietnamese counterparties, including tax residence evidence, beneficial ownership documentation, and substance and economic activity confirmation.
        7. Banking compliance pack: Build a pre-assembled documentation pack for Vietnam-corridor payments (contract, invoice, proof of delivery/performance, business rationale, beneficial ownership information) to address bank queries within hours rather than days.
        8. Monitor the October 2026 review: Track Vietnam’s progress on EOIR reforms and the EU Code of Conduct Group’s October 2026 review cycle. If Vietnam is removed from Annex I in October 2026, Member States that follow a static approach (Germany, Netherlands) will not apply defensive measures to Vietnam in their 2027 rules; France, which also follows a static approach but applies additional domestic criteria, may nonetheless retain Vietnam on its own non-cooperative state list even after EU delisting. The October 2026 outcome is therefore commercially significant for medium-term planning.
        9. Embed internal governance: Install jurisdiction-risk gateways in approval workflows for new entities, contracts, loans, and IP arrangements involving Vietnam, to ensure proper sign-off and documentation from inception.

        Under French Law, franchisors and distributors are subject to two kinds of pre-contractual information obligations: each party must spontaneously inform their future partner of any information they know is decisive to their consent. In addition, for certain contracts – i.e a franchise agreement – there is a duty to disclose a limited amount of information in a document. These pre-contractual obligations are mandatory rules of public policy. Thus, these two obligations apply simultaneously to the franchisor, distributor or dealer when negotiating a contract with a partner.

        Takeaways

        • The information required by the DIP must be fully completed and updated ;
        • The information not required by the DIP but provided by the franchisor must be carefully selected and sincere;
        • Franchisee must be given the opportunity to request additional information from the franchisor;
        • Franchisee’s experience in the economic sector enables the franchisor to considerably limit its exposure to the risk of contract cancellation due to a defect in the franchisee’s consent;
        • Franchisor must keep the proof of the actual disclosure of pre-contractual information (whether mandatory or not).
        • The general information obligation under common law (Article 1112-1 of the French Civil Code) may apply concurrently with the special disclosure obligation provided for under Article L. 330-3 of the French Commercial Code.

        General duty of disclosure for all contractors

        What is the scope of this pre-contractual information?

        This obligation is imposed on all counterparties, for any kind of contract. Indeed, article 1112-1 of the Civil Code states that:

        (§. 1) The party who knows information of decisive importance for the consent of the other party must inform the other party if the latter legitimately ignores this information or trusts its counterparty.

        (§. 3) Of decisive importance is the information that is directly and necessarily related to the content of the contract or the quality of the parties. »

        This obligation applies to all contracting parties for any type of contract.

        French courts have ruled that this general information obligation may apply concurrently with the special disclosure obligation under Article L. 330-3 of the French Commercial Code (see below), answering the question in the affirmative (Paris Court of Appeal, 27 March 2024, no. 22/12665). The scope of the latter has however, been defined by the French Supreme Court (« Cour de cassation ») : only information bearing a direct and necessary link with the subject matter of the contract or the qualities of the parties is subject to the disclosure obligation (Cass. com., 14 May 2025, no. 23-17.948).

        Who bears the burden of proof?

        The burden of proof rests on the person who claims that the information was due to him. He must then prove (i) that the other party owed him the information but (ii) did not provide it (Article 1112-1 (§. 4) of the Civil Code)

        Special duty of disclosure for franchise and distribution agreements

        Which contracts are subject to this special rule?

        French law requires (art. L.330-3 French Commercial Code) the provision of a pre-contractual information document (in French “DIP”) and the draft contract, by any person:

        • which grants another person the right to use a trade mark, trade name or sign,
        • while requiring an exclusive or quasi-exclusive commitment for the exercise of its activity (e.g. exclusive purchase obligation). The quasi-exclusive nature of the commitment is assessed on a case-by-case basis by French courts, independently of the 80% purchase threshold provided for under EU Regulation 2022/720, which is treated merely as an indicative reference.

        Concretely, DIP must be provided, for example, to the franchisee, distributor, dealer or licensee of a brand, by its franchisor, supplier or licensor as soon as the two above conditions are met. French courts have moreover recently had occasion to confirm that the scope of the DIP obligation is not limited to franchise agreements but extends, in particular, to dealership agreements, provided the above-mentioned conditions are met (Paris Court of Appeal, 22 May 2024, no. 22/08672).

        When the DIP must be provided?

        DIP and draft contract must be provided at least 20 days before signing the contract, and, where applicable, before the payment of the sum required to be paid prior to the signature of the contract (for a reservation).

        What information must be disclosed in the DIP?

        Article R. 330-1 of the French Commercial Code requires that DIP mentions the following information (non-detailed list) concerning:

        • Franchisor (identity and experience of the managers, career path, etc.);
        • Franchisor’s business (in particular creation date, head office, bank accounts, history of the development of the business, annual accounts, etc.);
        • Operating network (members list with indication of signing date of contracts, establishments list offering the same products/services in the area of the planned activity, number of members having ceased to be part of the network during the year preceding the issue of the DIP with indication of the reasons for leaving, etc.);
        • Trademark licensed (date of registration, ownership and use);
        • General state of the market (about products or services covered by the contract) and local state of the market (about the planned area) and information relating to factors of competition and development perspective. With respect to the local market, the French Supreme Court (« Cour de cassation ») has held that the franchisor is not required to conduct a market study, but that if one is provided, it must be accurate and verifiable (Cass. com., 18 Oct. 2023, no. 22-19.329).;
        • Essential element of the draft contract and at least: its duration, contract renewal conditions, termination and assignment conditions and scope of exclusivities;
        • Financial obligations weighing in on contracting party: nature and amount of the expenses and investments that will have to be incurred before starting operations (up-front entry fee, installation costs, etc.).

        Beyond the exhaustiveness of the information required under the aforementioned provision, the DIP is subject to a qualitative standard. All information provided — including information provided spontaneously — must be accurate and truthful to ensure that the prospective network member’s consent is fully informed and free from any defect.

        How to prove the disclosure of information?

        The burden of proof for the delivery of the DIP rests on the debtor of this obligation: the franchisor (Cass. Com., 7 July 2004, n°02-15.950). The ideal for the franchisor is to have the franchisee sign and date his DIP on the day it is delivered and to keep the proof thereof.

        The clause of contract indicating that the franchisee acknowledges having received a complete DIP does not provide proof of the delivery of a complete DIP (Cass. com, 10 January 2018, n° 15-25.287).

        The franchisor is subject to a duty to update the DIP until the contract is signed

        In a ruling dated 26 June 2024 (no. 23-14.085 PB), the French Supreme Court held that formal compliance of the DIP at the time of its delivery is not sufficient to exonerate the franchisor from all pre-contractual liability. This position was confirmed by a subsequent ruling of 4 December 2024 (no. 23-16.684).

        These two decisions appear to establish a duty of ongoing updates incumbent upon the network head throughout the entire period between the delivery of the DIP and the execution of the contract. Where significant events occur during that interval — insolvency proceedings affecting network members, major litigation, or structural changes to the network — the network head is required to proactively inform the prospective member. The court then examines whether the failure to disclose such information was liable to distort the candidate’s assessment of the network and, consequently, to vitiate his consent (Cass. com., 26 June 2024, op. cit.).

        A franchisor may therefore not shelter behind the initial regularity of the DIP to discharge its disclosure duty where the network’s situation has materially changed prior to the signing of the contract.

        Sanction for breach of pre-contractual information duties

        Criminal sanction

        Failing to comply with the obligations relating to the DIP, franchisor or supplier can be sentenced to a criminal fine of up to 1,500 euros and up to 3,000 euros in the event of a repeat offence, the fine being multiplied by five for legal entities (article R.330-2 French commercial Code).

        Cancellation of the contract for deceit

        The contract may be declared null and void in case of breach of either article 1112-1 of the French Code civil or article L. 330-3 of the French Code de commerce. In both cases, failure to comply with the obligation to provide information is sanctioned if the applicant demonstrates that his or her consent has been vitiated by error, deceit or violence. In this respect, courts conduct a concrete, case-by-case assessment, taking into account in particular the professional experience and personal due diligence of the distributor: a sophisticated candidate will face greater difficulty in establishing deceit, and his experience in the relevant sector may be sufficient to exonerate the franchisor (Paris Court of Appeal, div. 5 – ch. 11, 26 Apr. 2024, no. 21/13205), even where the information provided was incomplete or inaccurate (Paris Court of Appeal, 20 Jan. 2021, no. 19/03382).

        The path is therefore narrow for the franchisee: he cannot invoke error concerning profitability when it is he who draws up his plan, and even when this plan is drawn up by the franchisor or based on information drawn up and transmitted by the franchisor, the experience of the franchisee who knew the local market may exonerate the franchisor.

        Regarding deceit, Courts strictly assess its two conditions which are:

        • (a material element) the existence of a lie or deceptive reticence (article 1137 French Civil Code), and
        • (an intentional element) the intention to deceive his counterparty (article 1130 French Civil Code).

        Where applicable, the parties must return to the state they were in before the contract.

        Damages

        Although the claims for contract cancellation are subject to very strict conditions, it remains that franchisees/distributors may alternatively obtain damages on the basis of tort liability for non-compliance with the pre-contractual information obligation, subject to proof of fault (incomplete or incorrect information), damage (loss of opportunity of not contracting or contracting on more advantageous terms) and the causal link between the two.

        From Reporting to Governance and Risk Allocation

        Environmental, Social and Governance (ESG) considerations are playing an increasingly influential role in how businesses operate, invest, and manage risk, especially within the European Union, where corporate sustainability and responsibility regulation have been on the agenda in recent years.

        With the adoption of the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD), many companies anticipated a significant shift in compliance. Since then, the EU has introduced simplification measures to streamline reporting and due diligence obligations, reduce the administrative burden, and improve proportionality, particularly for small and medium-sized enterprises (SMEs), while maintaining the core sustainability objectives.

        While opinions may differ regarding the evolution of environmental, social, and governance (ESG) in EU regulation and the subsequent postponements of reporting obligations, regulatory developments appear to have, in practice, supported a shift in perspective. Sustainability is no longer viewed solely as a reporting requirement, but increasingly as a matter of governance, strategy, and risk allocation. This development is welcome, as the regulatory framework’s underlying objective is to advance the green transition, which in turn requires a change in how companies integrate sustainability into their decision-making and operations.

        This focus on sustainability influences businesses of all sizes, including SMEs. Even companies not directly subject to the CSRD or CSDDD anticipate that ESG requirements will be passed down through the supply chain. Many non-reporting SMEs are already embedding sustainability practices, and this trend is likely to continue. In other words, sustainability policies are already affecting companies well before any formal reporting obligations kick in.

        Environmental, Social, and Governance in Contract Architecture

        One of the key means of implementing environmental, social, and governance obligations and objectives in day-to-day business operations is through commercial contracts and the requirements and commitments embedded in them.

        Even where a company itself is not directly subject to extensive reporting or due diligence obligations, corporate sustainability and responsibility expectations flow through the market via contractual relationships. Larger undertakings within the scope of CSRD and, in due course, the CSDDD require contractual assurances, information rights, and cooperation from their business partners, including SMEs operating within their supply chains. As a result, corporate sustainability and responsibility become a question of contractual architecture. Companies must consider not only price mechanisms, liability caps and termination triggers, but also how environmental, social and governance risks and obligations are addressed and allocated between the parties through legally enforceable contractual terms.

        Translating Policies into Binding Obligations

        A typical starting point is the incorporation of a code of conduct or sustainability policies into commercial contracts, often by reference and through an express obligation on the contracting party to comply with them. From a legal standpoint, this raises important drafting questions. Many codes are drafted as high-level public statements. When such policies are converted into contractual commitments, their wording, scope, and hierarchy relative to the main agreement require careful consideration. The obligations must be sufficiently clear to define the parties’ expectations, coherent with other contractual provisions, and proportionate to the commercial relationship. The obligations must also be capable of practical implementation and effective monitoring in the context of the agreement.

        In practical terms, this may mean requiring the supplier to comply with specific labour standards, maintain documented environmental management procedures, report on emissions data, ensure traceability of key raw materials, or allow reasonable access for audits. Clearly defining what is expected, how compliance is demonstrated, and what consequences follow from non-compliance is essential for the clause to function effectively. Otherwise, clauses that appear comprehensive in theory and ambitious in scope may offer limited enforceability in practice, and their impact may remain marginal if compliance cannot be effectively monitored and verified. If policies are not properly translated into binding and operational obligations, the company risks a mismatch between what it promises publicly and what is actually required under its contracts. This may undermine consistency, weaken risk management, and expose the company to reputational and governance risks if its own stated principles cannot be enforced within its supply or distribution chain.

        As part of this process, companies must also consider the protection of trade secrets and confidential information. For example, broad audit or data-reporting obligations may raise concerns about sensitive business information. Contractual terms should balance transparency with the need to protect legitimately proprietary data. Clauses such as confidentiality agreements or carve-outs for trade secrets can be used to ensure that sharing ESG-related information does not compromise confidential business information or competitive advantages.

        Environmental, Social and Governance Clauses Across Different Contract Types

        Besides codes of conduct and sustainability policies, environmental, social and governance-related clauses increasingly take more tailored and transaction-specific forms. In shareholder agreements, sustainability objectives may be reflected in governance structures or even linked to financial outcomes, for example by aligning dividend policies or incentive mechanisms with agreed climate targets. In employment contracts, obligations may extend beyond general compliance and include participation in corporate sustainability training programmes or adherence to internal sustainability guidelines as part of performance expectations.

        In supply and manufacturing agreements, environmental, social and governance provisions may address traceability of raw materials, emissions reporting, waste management, energy efficiency standards or the right to replace a supplier if its environmental practices materially conflict with the contracting party’s sustainability commitments. Such contractual mechanisms increasingly affect SMEs operating as suppliers, as ESG expectations pass through the supply chain.

        Construction contracts often include detailed requirements regarding material selection, lifecycle impacts, carbon footprint calculations and recycling or waste reduction procedures. For example, in Finland, legislation imposes low-carbon and energy efficiency requirements for new buildings, and a party undertaking a construction project is subject to mandatory reporting obligations relating to construction and demolition waste. These statutory requirements are typically reflected and implemented in the relevant project and construction contracts.

        Across these different contract types, the practical significance is consistent. Environmental, social and governance considerations move from the level of general policy into legally enforceable obligations tailored to each specific legal relationship. Contracts function as a mechanism for allocating responsibility, managing compliance risk and aligning commercial incentives with sustainability objectives.

        Proportionate Monitoring and Audit Rights

        In the contractual implementation and monitoring of environmental, social and governance obligations, audit and information rights play a central role. They are closely linked to effective oversight and form an integral part of a coherent contractual framework. In practice, companies typically seek access to relevant data from their business partners and, where appropriate, establish inspection or audit rights to enable meaningful monitoring and verification, whether conducted directly by the company or, commonly, by an independent expert appointed for that purpose.

        However, such arrangements must remain balanced. Overly burdensome provisions may needlessly disrupt day-to-day operations and reduce the willingness to cooperate, particularly for SMEs with limited administrative capacity. By contrast, well-designed mechanisms that balance transparency with confidentiality and operational feasibility are more defensible and more likely to function effectively in practice.

        Contractual Remedies

        As a general principle, the consequences of a breach are determined by the terms agreed between the parties. In practice, the parties will typically first seek to resolve the matter through discussion and good faith negotiations, allowing the non-compliant party an opportunity to clarify the situation and implement corrective actions within a reasonable timeframe. If negotiations do not lead to a resolution, it may be appropriate to proceed to stronger measures, such as contractual penalties, indemnification obligations, price adjustments, temporary suspension rights or other agreed sanctions, applied in light of the nature and severity of the breach.

        The contract should clearly define what constitutes a breach, how it is assessed and what remedies are available in each scenario. Clear and proportionate step-by-step remedy structures enhance legal certainty, reduce the risk of disputes and ensure that material or repeated breaches may trigger more significant consequences, including termination where justified.

        Strategic and Voluntary Environmental, Social and Governance Commitments

        In the current EU landscape, implementing ESG considerations in commercial contracts is no longer simply a matter of reacting to directives. It is a broader exercise in risk management and corporate governance. Even as the implementation details of the directives may continue to evolve, market expectations, financing conditions and reputational considerations remain key drivers of sustainability integration.

        In addition, some companies choose to position themselves as frontrunners in sustainability for strategic and reputational reasons. They may therefore incorporate voluntary environmental, social and governance mechanisms and requirements into their contracts that go beyond, or are not directly derived from, binding directives. By doing so, they signal to investors, customers and other stakeholders that sustainability is treated as a core business priority rather than merely a compliance obligation.

        At the same time, it is important to recognise the practical limits of such commitments. Ambitious sustainability requirements may be more challenging for SMEs with limited financial and administrative resources. Meeting extensive reporting, certification or traceability standards can require investments in systems, personnel and external expertise. If contractual expectations are not calibrated to the size and capacity of the counterparty, they may limit the ability of SMEs to participate in certain supply chains. A balanced and proportionate approach helps ensure that sustainability objectives remain achievable and commercially workable across the contractual chain.

        Conclusion

        For legal practitioners, the central task is not to increase the number of environmental, social and governance clauses as such, but to ensure their quality, coherence and practical relevance. The objective is to design contractual mechanisms that are proportionate, enforceable and aligned with the company’s actual risk profile, industry context and sustainability priorities. Commercial contracts remain one of the most concrete tools for translating sustainability strategy into operational practice. Moreover, every contract lawyer should understand and apply key sustainability principles in their work, ensuring that ESG commitments become integral to legal advice and contract drafting.

        The Strait of Hormuz is likely the most strategically important point for the global oil trade. In fact, approximately 20% of the world’s oil and gas passes through this narrow passage between the Gulf of Oman and the Persian Gulf every day.

        Following the outbreak of war in the region, the impact on energy markets was almost immediate: oil prices quickly rose above $100 per barrel, and it is unclear how high they may climb in the coming weeks and months. As a result, transportation, production, and procurement costs are rising across industrial supply chains in many sectors.

        For many companies engaged in international trade, this phenomenon creates a very real problem. Contracts signed months (or years) earlier—perhaps at a fixed price—must be fulfilled in a completely different economic context.

        A manufacturer that sells goods for delivery in six or twelve months may find itself producing and shipping at much higher energy costs, while the price agreed upon with the customer remains unchanged.

        This is a situation that recurs cyclically, for various reasons: from the COVID-19 pandemic to the subsequent raw materials crisis, and on to current geopolitical tensions.

        When the increase in costs is so sudden and significant, a question inevitably arises: must the contract still be performed under the original terms, or is it possible to suspend or renegotiate the agreement to adapt it to the new circumstances?

        The answer depends on several factors: first and foremost, on what the parties have (or have not) provided for in the contract, but also on the law applicable to the relationship and on the interpretation that judges or arbitrators may give to the rules in the event of a dispute.

        Force Majeure and Hardship: Two Different Concepts

        When extraordinary events occur—such as a war, an energy crisis, or the disruption of a trade route—many operators immediately invoke force majeure. However, in most cases, these situations fall instead under the category of hardship.

        It is therefore essential to distinguish between these two situations.

        When an Event Constitutes Force Majeure

        Force majeure applies to cases where an extraordinary and unforeseeable event makes it impossible to perform the contract.

        The characteristics of the grounds for exemption from liability depend on the law applicable to the commercial relationship, but generally require:

        • unpredictability of the event;
        • the event being beyond the affected party’s control;
        • the impossibility of avoiding or overcoming the event through reasonable efforts.

        Typical examples include:

        • orders from authorities requiring the suspension of production
        • embargoes or export bans
        • logistical disruptions caused by war

        In these situations, performance is not merely more costly: it becomes objectively impossible. The consequence is that the party unable to perform is generally exempt from liability for the duration of the event.

        Hardship

        The situation is different when performance of the contract remains possible but becomes economically much more burdensome.

        The concept of hardship is generally based on four prerequisites:

        1. an event occurring after the conclusion of the contract
        2. unpredictability and extraordinary nature of the event
        3. a substantial alteration of the economic balance of the contract
        4. excessive burden of performance, but not impossibility

        A sharp increase in the price of oil, gas, or other raw materials often falls into this category.

        Goods can be produced and delivered, but doing so may entail costs far higher than those anticipated when the contract was signed.

        The ripple effect along the international supply chain

        In global industrial supply chains, the same goods are often the subject of a series of consecutive contracts.

        The manufacturer sells to a trader, who sells to a processing company, which resells to an importer in another country, who in turn distributes the product to the end market.

        When a hardship event occurs—such as a sharp rise in energy prices—the effect tends to ripple throughout the entire supply chain.

        The first party affected by the cost increase will try to pass the increase on to its contractual counterpart, who, in turn, will find themselves in the same situation with the next link in the chain.

        The risk is clear: one of the operators in the middle of the chain may face increased upstream costs without being able to pass them on downstream.

        This is one of the most common problems in international supply chains.

        What happens if there is no clause regarding price fluctuations

        In commercial practice, it often happens that parties operate on the basis of orders and order confirmations without a formal written contract, or that a contract exists but contains no provisions regarding price fluctuations or hardship.

        In such cases, when costs increase sharply, it is necessary to determine which law applies to individual sales contracts across the supply chain.

        This can lead to very different situations:

        • one law may allow for price revision or termination of the contract
        • another law aplicable to a second contract may not provide for equivalent remedies
        • a third contract may contain much more restrictive contractual clauses

        The practical result is that an operator in the middle of the chain may face a price increase from their supplier without being able to pass it on to the customer.

        A Common Legal Framework: The Vienna Convention on the International Sale of Goods (CISG)

        Fortunately, many international sales contracts are governed by the 1980 Vienna Convention on the International Sale of Goods (CISG).

        The convention has been ratified by 97 countries, including Italy and most major trading partners, such as the U.S., Canada, China, Germany, France, Spain, etc.

        The central provision is Article 79, according to which a party is not liable for non-performance if it proves that the non-performance is due to an impediment:

        • beyond its control
        • unforeseeable at the time of the conclusion of the contract
        • unavoidable or insurmountable

        Traditionally, this provision has been applied to cases of force majeure.

        In recent years, there has been debate over whether it can also be applied to cases of hardship, but international case law tends to be very cautious.

        International case law on Hardship

        Court decisions reflect a rather strict approach.

        In some cases, even very significant increases in raw material costs have not been considered sufficient to modify or suspend the contract.

        The reasoning is simple: those who operate professionally in international trade must take into account a certain degree of market volatility.

        Only when the increase in costs exceeds an exceptional and unforeseeable level such as to radically alter the balance of the contract can hardship be invoked.

        One of the most frequently cited cases is the Belgian Supreme Court’s decision in the Scafom case, which recognized the right to renegotiate the contract following a 70% increase in the price of steel.

        However, such cases are relatively rare.

        Generic clauses that serve no purpose

        Many contracts contain hardship clauses copied from standard templates (boilerplate).

        The problem is that these clauses often:

        • list the effects of hardship
        • but do not define when hardship actually occurs

        The result is that, when prices rise, the parties may have very different opinions on what constitutes an “exceptional” increase and whether the event in question was “unforeseeable” or not.

        The clause, therefore, does not resolve the issue, but defers it to discussion between the parties and, in the event of a failure to reach an agreement, to the courts or arbitrators.

        What criteria can define a hardship situation

        To make the clause truly effective, it is useful to establish objective parameters.

        Among the most commonly used in international contracts:

        • an increase or decrease in the price of a raw material beyond a certain threshold (±20% or ±30%)
        • an increase in transportation or logistics costs within certain limits;
        • significant fluctuations in the exchange rate beyond a specified range;
        • the introduction of tariffs or trade restrictions

        These parameters, linked to tolerance ranges, allow the parties to quickly and unambiguously identify a hardship event.

        Remedies in the Event of Hardship

        An effective clause should also address how to handle the situation.

        The most common solutions are:

        • renegotiation of the contract in good faith
        • apply an automatic price adjustment
        • appointment of an independent third-party expert to determine the new price
        • temporary suspension of the contract
        • right of withdrawal if no agreement is reached

        These tools allow the parties to manage the crisis without resorting to litigation.

        Audit of existing contracts: what to do now

        At this point, the practical question becomes: how should we manage the issue in existing business relationships?

        The first step is to conduct an audit of existing contracts with suppliers and customers.

        1. Introduce comprehensive contracts in new relationships

        If the relationships are governed solely by purchase orders and order confirmations, it is advisable to take this opportunity to draft comprehensive international sales contracts that include:

        • a hardship clause
        • warranty provisions
        • remedies for breach
        • limitations of liability

        2. Update existing contracts

        If the relationship is already governed by a contract, you should check whether a hardship clause exists.

        If not, it may be useful to propose to the other party:

        • a new contract, or
        • a contract addendum dedicated to managing price fluctuations.

        This helps prevent future conflicts and provides both parties with an effective tool to manage potential price shocks along the supply chain.

        Conclusion

        Commodity and energy crises demonstrate how exposed international contracts are to sudden changes in economic conditions. When a contract does not clearly address hardship management, the risk does not disappear; it simply shifts along the supply chain until it settles on the weakest link.

        For this reason, companies operating within international supply chains should view the hardship clause as a strategic tool for managing contractual risk. A well-drafted contract does not eliminate market volatility, but it allows the parties to address it with clear rules, reducing uncertainty and preventing disputes.

        Executive Summary

        The African Continental Free Trade Area (AfCFTA) remains one of the most ambitious integration projects in the world. Yet, several years into its operational phase, it has not (yet) delivered the structural shift many expected. A recent analysis underscores the gap between political momentum and economic reality: implementation remains uneven, the agreement is still used by only a portion of participating states, and non-tariff barriers and infrastructure deficits continue to dominate the cost of doing business across borders.  For Egypt, the opportunity is still real — but it depends less on treaty headlines and more on enabling conditions: trade logistics, customs efficiency, regulatory convergence, and competitive industrial capacity. 

        Looking Back: The Promise of a Single African Market

        When the AfCFTA was launched, expectations were understandably high. A continent-wide trade framework was supposed to reduce tariffs, facilitate trade in goods and services, and strengthen regional value chains — with the broader goal of moving African economies up the value ladder.

        In my 2022 article, I asked whether AfCFTA could become a game changer for Egypt, given Egypt’s industrial base, strategic geography, and the potential to diversify export markets beyond traditional partners. (For background, see the earlier article here”).

        The Reality Check: Intra-African Trade Remains Structurally Weak

        Several years later, the interim assessment is sobering. As the Frankfurter Allgemeine Zeitung (FAZ) recently put it, AfCFTA is not a “game changer” yet, and only about half of member states currently meet the practical prerequisites to trade under the agreement.

        A deeper reason is structural: no other world region trades so little with itself, and while statistics may undercount informal cross-border flows (especially in food), the overall picture remains unchanged.

        Trade integration cannot deliver transformative outcomes if production, logistics, and institutions do not support scale.

        Implementation Has Been Slow — and Often Symbolic

        Operationalisation did not start with full-scale liberalisation. Instead, the AfCFTA began with a pilot approach: the Guided Trade Initiative (GTI) launched in October 2022, initially with eight states, later joined by additional countries, including Nigeria and South Africa by spring 2025.

        The GTI created valuable learning effects, but it also underlined a key point: early progress was often presented through symbolic deals, while product coverage and volumes remained limited. FAZ highlights that only selected goods could be traded duty-free and that key sectors remained constrained for a long time due to missing or unresolved technical rules.

        A pilot, however, cannot substitute for full operational certainty — the kind businesses need to restructure supply chains and invest.

        Tariffs Are Not the Main Barrier — Trade Costs Are

        AfCFTA is frequently discussed in terms of tariff liberalisation. Yet, evidence suggests that the largest gains do not come from tariffs but from reducing non-tariff barriers and improving trade infrastructure.

        FAZ points to a central reality: tariffs tend to add around 20–30% to intra-African trade costs, whereas non-tariff costs can be far higher — driven by bureaucracy, lack of harmonised standards, inefficient border processes, and transport barriers.

        This is the crux: even with reduced tariffs, trade will not expand meaningfully if goods still cannot move cheaply, quickly, and predictably.

        Integration Complexity and Distributional Politics

        Africa’s integration landscape is shaped by multiple overlapping regional economic communities and trade regimes. This creates legal and administrative complexity — often described as an integration “spaghetti bowl.” FAZ notes the challenge of coordination and the continued fragmentation of rules.

        There is also a political economy dimension. Intra-African trade is heavily influenced by a small number of larger economies — and the distribution of benefits matters. FAZ highlights the dominance of major players (notably South Africa) and the concern that tariff liberalisation alone may entrench existing industrial advantages.

        Where governments expect asymmetric outcomes, resistance often takes the form of delay, narrow implementation, or persistent non-tariff barriers.

        What This Means for Egypt: The Opportunity Is Real — But Conditional

        Egypt’s strategic case for AfCFTA participation remains strong: industrial potential, geographic location, and the opportunity to access and shape growing markets. But the experience so far suggests that the treaty text alone does not generate trade flows.

        For Egypt’s private sector, the decisive factors are practical:

        • predictable and efficient customs clearance and border procedures,
        • logistics corridors and port efficiency,
        • regulatory convergence (standards, certification, compliance),
        • stable access to trade finance and payments,
        • competitive energy and production conditions for manufacturing and processing.

        AfCFTA can support these developments — but it cannot replace them.

        The “Game Changer” Pathway: What Must Happen Next

        FAZ concludes that AfCFTA will only become truly impactful if it is paired with the fundamentals: major infrastructure investment, stronger production and processing capacity, and a credible industrial policy.

        At the same time, Africa faces a classic chicken-and-egg problem: without development there is limited investment appeal; without investment there is limited development.

        For Egypt and its partners, a pragmatic strategy would be to:

        1. treat AfCFTA as a platform for real trade-cost reduction, not only tariff debates;
        2. focus on a limited number of scalable corridors and sectors where regional value chains can realistically grow;
        3. strengthen implementation capacity so that preferences become usable for firms — especially SMEs;
        4. enhance legal certainty and dispute resolution reliability for cross-border commerce.

        Conclusion

        AfCFTA remains a landmark achievement in terms of political commitment. But as of today, it has not yet been the “game changer” many hoped for.

        For Egypt, the key question is no longer whether AfCFTA is visionary — it is. The question is whether governments and businesses can translate it into lower real trade costs, higher competitiveness, and bankable cross-border transactions. If those enabling conditions improve, AfCFTA’s promise can still become commercial reality.

        After “Liberation Day,” many foreign companies offered discounts to American importers to help them offset the tariffs. A few months later, the US Supreme Court declared the „reciprocal“ tariffs unlawful, but on the same day, President Trump announced new tariffs. In this article, we provide a practical overview of how to handle various scenarios, shifting from a reactive, unstructured approach to deliberate management of price volatility and trade flows caused by the introduction, adjustment, and removal of tariffs.

        Tariff Sharing agreements

        For a long time, the question has been straightforward: who absorbs the extra customs cost? The exporter? The importer? Both? The question remains important, but today it is incomplete.

        The new scenario, in light of the recent ruling by the US Court of Justice on March 20, 2026, is: what happens if that duty is then canceled and refunded? If the cost was shared between the parties, the benefit of the refund must follow a consistent logic. In the absence of a clear agreement on this point, however, there is a risk of economic misalignment that could compromise the commercial relationship.

        Let’s imagine an Italian winery that sells its products to a US importer. Following the introduction of reciprocal duties, the parties have decided that the exporter will grant an extraordinary discount of 7.5%, explicitly motivated by the need to share the impact of the duty. The commercial relationship continues, volumes remain stable, and the importer avoids passing on the entire increase to the end customer.

        As a result of the Supreme Court ruling (or, in the future, another ruling or administrative decision), the importer obtains a refund of the duties paid during that period.

        If no formal agreements have been made on this point and the documentation refers generically to a „commercial discount“ and says nothing about reimbursement, the situation afterward may be difficult to reconstruct and, above all, could lead to commercial tension. As a result, a positive development (the cancellation of the duty and the right to reimbursement) becomes a problematic factor that jeopardizes the relationship.

        Is the exporter entitled to a refund of the discounts granted to mitigate the duties?

        In the absence of a different agreement between the parties, the right to reimbursement belongs to the party who paid the duty, i.e., in most cases, the importer. Therefore, there is a risk that the importer will enjoy a double benefit (the discount and the duty refund), while the exporter will get nothing.

        For this reason, it is essential that the parties do not limit themselves to negotiating prices and discounts, but also establish the consequences of the adoption, modification, or revocation of duties on the contract, including any refunds.

        To achieve this, the first step is to accurately classify and document the discounts granted. If only a „commercial discount“ appears in emails, commercial orders, credit notes, and invoices, it will be harder to later argue that this discount was actually an extraordinary, temporary contribution related to the duty. Conversely, if the documentation and contract specify that it is a tariff sharing or tariff mitigation measure, identifying the amounts to be refunded after the fact becomes much simpler.

        The goal is to create a clear view of the trend in discounts and payments so that, if needed, financial flows can be adjusted to align with the original terms of the agreement: if the exporter has helped cover a cost that then, in whole or in part, does not end up materializing, they will be eligible for a refund of the contribution paid.

        The contract will therefore include, in addition to the Tariff Sharing clause, a Tariff Reimbursement Allocation clause, which states that if the importer receives a refund, credit, or any other economic benefit related to the duty for which the exporter has granted a discount, the importer must return the corresponding portion of the benefit to the exporter in full. or proportionally, depending on how the parties intend to distribute risk and incentive.

        Importer’s responsibility to seek reimbursement

        It is unclear whether, in the case of US reciprocal duties, importers can simply file an administrative claim to get a refund or if legal action will be required. The latter seems more probable.

        Generally, obtaining a duty refund involves action, deadlines, documentation, and coordination with brokers and customs consultants. In most cases, the entity controlling the process is the importer (or someone acting on their behalf).

        This raises a sensitive but very real issue: if the importer knows that they will have to invest time and money to obtain a refund, only to then have to share the benefit with the exporter, their incentive to take action may be reduced. To prevent this inertia  the contract should contain an express obligation to take action, set out as a duty of best efforts or commercially reasonable efforts.

        For example, the contract should specify that the importer must inquire about the conditions and time limits of the process, keep relevant documentation, regularly inform the exporter about the progress of the initiatives, and not unilaterally waive or reduce the claim if it affects the exporter’s economic rights.

        Preventive Agreements on Litigation and Cost Allocation

        When reimbursement involves a lawsuit or structured legal action, the obstacles are organizational and financial: who decides if and when to proceed, who selects the lawyers, who pays the costs upfront, how the net recovery is divided, and who has the final say on a settlement. This generally applies to all contracts, not just this case: dispute resolution methods must be addressed and agreed upon before the problem arises.

        Otherwise, the dispute resolution process risks becoming a secondary improvised negotiation at the worst time — when the parties are already under pressure from margins, cash flow, and regulatory uncertainty. As a result, it becomes much harder to reach an agreement.

        How to handle new tariffs and their potential cancellation

        To safeguard against uncertainty, the agreement should be organized into two stages.

        • The first stage regulates the immediate impact of the change in scenario, for example, the introduction of a new tariff or its increase (renegotiation, cost sharing, automatic adjustment : I discussed this in this article).
        • The second stage manages the possible „rollback“ (right to reimbursement, process, allocation criteria).

        This approach has a clear benefit: it does not force the parties to discuss every time the tariff regime changes or a decision to cancel tariffs is made. Instead of reacting to market changes, a tool is adopted to manage potential scenarios, which is much more resilient commercially and easier to oversee, as the rules have already been agreed upon.

        This allows the impact of duties to be regulated not as an extraordinary variable, to be agreed upon on a one-time basis, but as a structural, adaptable phenomenon that could last a long time.

        This is why it is crucial to know how to draft contracts that cover both the current situation and potential changes, including any refunds.

        Conclusion: Three practical steps for companies exporting to the US

        The first is to agree on the consequences for the contract of the introduction of a new duty, increasing it, or revoking it (renegotiation, cost sharing, automatic price adjustment, right to share the refund).

        The second is to clearly document any discount granted to offset a duty. If it remains a generic „commercial discount,“ the right to a refund if reimbursement occurs will be much harder to enforce.

        The third step is to determine what happens if the duty is canceled or revoked: the importer’s responsibility to take action to get a refund, manage the administrative process or litigation, how to divide costs, who oversees the activities of consultants and lawyers, and how the recovered funds will be allocated.

        How do you approach negotiating a trade agreement with China?

        Based on my experience, let’s examine the issues to be addressed and the main questions to ask, taking the negotiation of a trade distribution agreement as a practical example.

        Let’s start with the first issue that is important to clarify.

        Nice Business Card – But Who Is This Guy?

        Business cards, websites, printed or digital brochures, presentations, and any other materials shared in English have no official value in China.

        The company name of the counterparty and the first and last names of people representing it or acting on its behalf, written in English, are only fictitious names.

        To be certain of the company’s data and the identity of the persons, it is necessary to ask for the information in Chinese, with particular reference to the company’s business license (equivalent to the Companies House or Chamber of Commerce’s excerpt), from which the name, corporate purpose, registered and paid-up share capital, and the name of the legal representative can be inferred.

        The data can then be verified by accessing the portal of the State Administration of Industry and Commerce (SAIC) of the province where the Chinese party is based.

        This first verification is essential to ensure that you do not waste time or even run into scams (here’s an in-depth article on Legalmondo’s blog).

        If You Don’t Own Your Trademark, Someone Else Will – and Charge You for It

        Trademark First, Trade Later. China operates on a first-to-file system for trademarks, which means that the first person or company to register a trademark – not necessarily the original creator or most famous user – gains the legal rights to it. This creates a serious risk: if you haven’t registered your trademark in China, someone else might do it before you, and then either use it freely or demand a hefty ransom to give it back. Even high-profile figures like Elon Musk and Michael Jordan have been entangled in costly and protracted disputes with Chinese trademark squatters. In many cases, getting the mark back is highly complicated, and sometimes legally impossible.

        To avoid this, register your trademarks early, even before entering the Chinese market. File directly with the China Trademark Office (CTMO) and don’t stop at the English version — consider registering a Chinese character version as well, since that is how your brand will often be known locally.

        Once that base is covered, clearly state in your contract that your Chinese partner is not allowed to file a registration of any of your trademarks in China, in Latin or Chinese characters, and that he will use trademarks and IP rights in strict conformance to the contract and your instructions.

        For a deeper dive into how to effectively protect your IP rights in China, check out our detailed article on the Legalmondo blog.

        Contracts can wait. First, get on the same page

        When negotiating with a Chinese partner, it’s often a mistake to begin the conversation by exchanging contract drafts. Instead, focus first on the substance — the relationship’s commercial and technical terms. Using a clear checklist of key discussion points (such as products, pricing, delivery terms, technical standards, after-sales support, exclusivity, duration, payment terms, etc.) helps ensure that both sides are aligned on what really matters. Take detailed notes and keep minutes of the discussions, especially where and when consensus is reached, and make sure those minutes are circulated and expressly agreed upon. Once substantial agreement has been achieved on the main terms, this memo can then be handed over to your lawyer, who will translate the business understanding into clear and coherent contractual language. This approach saves tons of time, as it helps avoid unnecessary back-and-forth on legal language before the core deal is in place.

        Think Your NDA Covers You in China? Think Again

        Yes, they are—and often underestimated. A well-drafted Non-Disclosure Agreement (NDA) is essential when the parties plan to exchange confidential information, such as technological know-how, commercial strategies, supplier data, or client lists. Especially in the early phases of negotiation or cooperation, before a main contract is signed, an NDA helps protect intellectual and business assets.

        However, as with all contracts in China, a generic NDA template copied from other jurisdictions will likely be of limited use. To be truly effective, the NDA must be adapted to the specifics of the Chinese legal environment. This includes ensuring that it is enforceable in China: the NDA should include the proper dispute resolution mechanism (see below on why you should consider applying Chinese law and litigating in China), and it must specify clear, valid, and proportionate penalties for breach. In Chinese practice, stating specific contractual penalties (liquidated damages) is often more effective than vague references to compensation, as courts and arbitrators in China tend to enforce these more reliably if they are reasonable.

        While a good NDA is useful, it often falls short in China’s manufacturing and sourcing landscape. This is where the NNN Agreement – standing for Non-Disclosure, Non-Use, and Non-Circumvention – becomes critical. Unlike standard NDAs that primarily focus on confidentiality, an NNN Agreement is designed to address the unique risks of doing business in China. It prevents the recipient from not only disclosing confidential information but also from using it for their benefit or bypassing the disclosing party to work directly with suppliers, clients, or partners. Which, in China, is a very real risk.

        This broader scope is vital when dealing with Chinese manufacturers or intermediaries, who may otherwise be tempted to replicate products or contact customers directly or through third parties. As seen with the NDA, also the NNN Agreement must be drafted in Chinese, governed by Chinese law, and enforceable in Chinese courts -otherwise, it may offer little real protection.

        Joint venture? Easy, Cowboy

        A joint venture is often the first proposal that comes up when negotiating with a potential Chinese partner. It seems appealing: sharing risks and investments, accessing the local market with an ally, leveraging their knowledge and network of contacts. But the reality is often very different from what it appears to be.

        A joint venture is a complex, expensive, and rigid corporate structure that requires significant investments of money, time, and human resources, as well as the ability to continuously manage often divergent interests among the partners. The vast majority of Sino-Foreign JVs have gone wrong, or will go wrong. Or very wrong. First and foremost, because the JV is usually managed by the Chinese partner, and exercising effective control over the company’s operations is a very challenging undertaking.

        Before going down this road, it is essential to ask yourself a few questions: Is the joint venture really indispensable for developing this business in China? (Spoiler: generally, no). Are there less restrictive and risky alternatives, such as a distribution agreement or a licensing agreement? (Yes, almost always). And above all: how well do we really know our potential partner?

        A joint venture should only be considered if it is strictly necessary for the project’s development, after carefully verifying the commercial viability and the reliability of the Chinese partner, and ensuring the ability to maintain effective control over the JV’s operations.

        It is better to start with simpler and more flexible forms of collaboration to test the market and the relationship with the other party before committing to such a demanding investment. Otherwise, the mirage of the joint venture risks turning into a nightmare that can be very costly.

        Memorandum of Understanding: Where Good Intentions Become Bad Contracts

        A Memorandum of Understanding (MoU) is a helpful tool at the early stage of a commercial relationship. It serves as a roadmap for future negotiations, where the parties outline the main principles and intentions that will guide the drafting of the final agreements. When used correctly, an MoU can significantly facilitate negotiations by ensuring that both sides commit to negotiating the agreement in good faith and share a common understanding of key points such as pricing models, territorial scope, exclusivity, milestones, budget, or performance expectations.

        However, an MoU must be used for what it is: a preparatory document, not a binding contract. Care must be taken to avoid ambiguity and unintended commitments. The text should clearly specify that the parties remain free to conclude – or not – the final agreements and which clauses are non-binding – such as the commercial framework or indicative timelines – and which provisions are binding, typically confidentiality, exclusivity during the negotiations (if agreed), governing law, and dispute resolution. A poorly drafted MoU, which includes overly precise and complete terms, can be misinterpreted as a final agreement, creating unnecessary legal risk. So yes, MoUs are valuable – but only when used correctly. If you’d like to know more, go deeper by reading this article.

        Bad Drafts, Big Headaches, Poor results

        Draft agreements used in China are often copied and pasted from incomplete, superficial, poorly organised templates written in bad English, which often do not match the Chinese version of the contract.

        Correcting and integrating these drafts is complicated and more time-consuming than starting from a good template, with suboptimal results.

        It would be better to propose a consistently constructed text and ask the other party to propose any changes and additions to this draft.

        Your Western Contract Template Won’t Work Here

        Even if an English-language contract is perfectly valid, there are many reasons why using contract templates built for other countries in the Chinese market is inadvisable.

        The first is the fact that Anglo-Saxon-based agreements, such as those for the U.S., refer to a common law system (which is based on judicial decisions and case law precedents) that is very different from that of civil law countries (such as China and Italy), which derives from the Roman legal tradition, based on a codified set of written laws.

        It follows that the layout of an agreement on the Anglo-Saxon model is different, much more detailed, and wordy than that of a typical agreement based on a civil law system. Since contract negotiations in China are generally lengthy and complex, working on redundant and complicated text at the outset does not help.

        If we stick to the example of a distribution contract, it should be added that it is advisable to apply Chinese law to provide for arbitration based in China (e.g., at CIETAC) or in Hong Kong or Singapore (third countries, where, however, the costs of the procedure increase significantly) as the mode of dispute resolution. So, the contract should be built on a model that conforms to the law that will apply to the relationship.

        Home Court Advantage Won’t Help You in China. In fact, quite the opposite

        This is a typical point of disagreement in the negotiation of an international contract: the parties aim to have the law of their own country apply, and to stipulate that any disputes be adjudicated by their domestic courts.

        In our case, insisting on the application of Italian (or any other foreign) law and state court is not a good idea: it should be considered, in fact, that a distribution agreement is carried out, for the vast majority, in the country where the distributor operates and where the products are sold (in our case, in mainland China).

        In disputes, the parties‘ (particularly the manufacturer’s) interest is to obtain a quick decision by the adjudicating body, especially if situations requiring immediate protection (such as unfair conduct or counterfeiting of trademarks and patents by the distributor) are ongoing.

        None of this is possible if one goes to an Italian judge (with lengthy litigation time and the need then for a complex and costly process to recognise and enforce the decision in China); on the contrary,  an arbitration in China, applying Chinese law, allows one to reach a decision quickly (on average 6-9 months) and, if necessary, also to obtain urgent measures to stop any unfair conduct.

        Chinese Law Isn’t a Black Box (If You Know What You’re Doing)

        The lawyer assisting you should know it.

        Therefore, it is not a leap in the dark, and one should not fear surprises.

        In addition, it should be remembered that an agreement is primarily based on the covenants that the parties have written in the contract; therefore, if the contract has been well drafted, the rules to be applied are clear.

        Finally, if we consider distribution agreements, keep in mind that they are a framework contract, within which a series of separate product sales contracts are concluded. If both countries are contracting parties to the 1980 Vienna Convention on the International Sale of Goods (CISG), then the uniform, clear, and balanced rules of the convention apply automatically, just don’t opt out!

        One Contract, Two Languages

        The contract is also valid in English only.  However, it is undoubtedly advisable to draft a Chinese version with facing text.

        This is for several reasons: first, it prevents the Chinese party from having to arrange for a translation of the text during negotiations for its own internal use (top managers often do not speak English), thus slowing down the various steps of negotiations.

        Also, to ensure that the Chinese side fully understands the agreement’s content and to avert misunderstandings (real or instrumental) about the interpretation of certain covenants.

        Finally, it should be borne in mind that if the contract were later to be used before a court or administrative authority in China, the only language admitted would be Chinese; for this reason, it is better to have already a text agreed and signed by the parties in Chinese as well, rather than having to prepare a unilateral translation later.

        Sign. And chop

        Does the contract need to bear the company’s official stamp? Yes, and this point is absolutely crucial. In China, a company’s official „chop“ (the red-ink stamp) is equivalent to a signature and is conclusive proof that the person signing the contract has the authority to represent the company. A signature alone, even from someone with an important-sounding title, may not be sufficient if it is not accompanied by the official chop. Without it, the contract might later be challenged or even considered void. Before signing, always verify that the stamp used matches the one registered with the company’s business license or official corporate records, and ensure that the stamp is applied on every page or at least on the signature page, in line with local practice.

        Don’t Let Your Contract Collect Dust

        Things change fast, especially in China. New products are added, market conditions evolve, people leave the company, new competitors emerge on the horizon, and so on. Companies constantly adapt to the new conditions, and so must the contract.

        Any change in the relationship should be formalized correctly. To avoid misunderstandings and disputes, it’s advisable to include an integration clause in the contract, specifying that any amendments or additions will only be valid if agreed in writing, signed by the parties’ authorized representatives, and annexed as an addendum to the original agreement.

        It’s not enough to include this clause – you must follow it consistently. If things change, agreements reached verbally, through Wechat messages, and through email exchanges may make things complicated if they are not formalised adequately according to the procedure set out in the original contract.

        If you’d like to go deeper, check out this article.

        Roberto Luzi Crivellini

        Rechtsgebiete

        • Schiedsgerichtsbarkeit
        • Vertrieb
        • Internationaler Handel
        • Rechtsstreitigkeiten
        • Immobilien
        Kontakt Roberto

        Schreiben Sie an Roberto





          Legalmondos Datenschutzbestimmungen lesen.
          This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

          Why the African Continental Free Trade Agreement has not yet turned into Reality — and What That Means for Egypt

          26. Februar 2026

          • Ägypten
          • Vertrieb
          • Auslandsinvestitionen
          • Steuer

          Foreign franchisors entering into franchise agreements in Spain should take careful note of the content of the judgment issued by the Provincial Court of Córdoba on November 20, 2025, and require that the partner(s) and the directors of the franchisee company expressly guarantee and indemnify the payment of any debts arising from the franchise agreement.

          Spanish corporate law establishes the principle of liability for the directors of corporations or limited liability companies when the company is subject to dissolution (for example, due to losses that reduce equity to less than 50% of the share capital) and, despite this, they fail to convene a meeting to adopt corrective measures (dissolution or capital increase).

          In the case of the aforementioned ruling, the franchisor was unable to collect the debt arising from the franchise agreement from the franchisee due to the latter’s insolvency; so it decided to claim that debt from the company’s administrator based on the provision mentioned above, that is, due to the fact that the franchisee company was facing dissolution due to losses and the administrator had not convened a shareholders’ meeting, as was his obligation, so that the shareholders could decide how to resolve the situation.

          The ruling we are discussing from the Court of Appeal of Córdoba upholds the lower court’s decision and dismisses the franchisor’s claim against the sole administrator of the franchisee company, stating that:

          With regard to liability for corporate debts under Article 367 of the Capital Companies Act, the court recognised the existence of the corporate debts, the presence of grounds for dissolution, the breach of the legal obligations by the corporate administrator, and his liability, but found that a ground for exoneration from liability existed in accordance with the doctrine of “known risk.” Thus, it was noted that the plaintiff is a franchisor and X. S.L. was the franchisee, and it was evident from the electronic communications that the franchisee was under constant monitoring and the franchisor was aware of the risk involved in the operations, halting the shipment of goods (clothing) as soon as the limits of the guarantees granted were exceeded, meaning the plaintiff voluntarily assumed the risk. For all these reasons, the claim was dismissed.

          In conclusion, and in light of the foregoing, the present franchise relationship and its conduct allow us to consider that it has been established that the franchisor (creditor) had greater knowledge of the franchisee’s (debtor’s) financial situation, beyond the information appearing in the annual accounts filed with the Commercial Registry, as it was the franchisee’s primary supplier. And this knowledge and control of the debt by the franchisor (through the increase in orders) justifies the exoneration of the corporate director’s liability for corporate debts under Article 367 of the Capital Companies Act, which leads to the dismissal of the appeal

          The legal theory or principle of Known/Accepted Risk, to which the judgment refers, holds that harm caused to a third party, with or without a contractual relationship in place, is not considered unlawful if the victim was aware of the risk and voluntarily assumed it.

          This doctrine was initially developed within the framework of tort liability: whoever engages in a risky activity and reaps its benefits must bear its negative consequences, that is, the risk—(cuius commodum, eius incommodum).

          However, case law has extended the application of this theory to the field of contractual liability, as demonstrated in the judgment under discussion.

          Therefore, since the plaintiff was aware of the defendant’s financial situation and solvency—having “monitored” its activity as a franchisor—and despite this, decided to maintain the contract’s validity, thereby increasing the debt, the ruling holds that the franchisor assumed the risk, which constituted grounds for exonerating the administrator from liability. However, more concerning than the above is that this “known risk” theory could be  considered applicable to the liability of the franchisee company itself, which could be exonerated from liability based on the franchisor’s monitoring of its activities.

          The conclusion of all the above is that, based on this application of the known risk theory, franchisors may face difficulties in claiming debts owed by the franchisee company from its directors in the event of the company’s insolvency; therefore, it is highly advisable that, when signing the franchise agreement, a joint and several guarantee for the franchise’s potential future debts be required from its directors and partners, which, moreover, is a fairly standard practice.

          In this way, the objection based on the theory of known risk would not come into play.

          Vietnam has been added to the EU list of non‑cooperative jurisdictions for tax purposes (Annex I), following the Council’s update of 17 February 2026.

          For EU companies buying goods and services from Vietnam, this is not an outright ban on trade, but rather a signal that substantially heightened tax governance scrutiny, documentation expectations, and (in some cases) more demanding payment execution will follow in the months ahead. The EU listing process is designed less to “name and shame” and more to encourage positive change through cooperation and dialogue, but once a jurisdiction is placed on Annex I, EU Member States implement “defensive measures” that can materially affect tax treatment, withholding obligations, and audit intensity for Vietnam-linked transactions.

          What the EU decision does (and does not) do

          The EU blacklist is a tax‑governance instrument: it does not prohibit EU businesses from importing goods from Vietnam or procuring Vietnamese services, and it does not alter Vietnam’s domestic tax regime, corporate income tax rules, withholding tax framework, or investment policies.

          At the same time, the EU can deepen cooperation with Vietnam on the political and economic track while still applying tax‑governance pressure through listing mechanisms, so businesses should be prepared for a “partnership plus scrutiny” environment rather than expecting the two to be perfectly aligned.

          In January 2026, the EU and Vietnam upgraded their relations to a Comprehensive Strategic Partnership, framed as a platform to strengthen cooperation across areas such as trade and investment, climate/energy, sustainable development and digital transformation-a signal that the blacklisting is a technical compliance tool, not a diplomatic rupture.

          The ideological paradox: a Socialist Republic on a tax-haven list

          Vietnam’s presence on the blacklist is striking when viewed in its broader political context. The EU blacklist was conceived after major tax-transparency scandals (the Panama Papers and LuxLeaks) to address jurisdictions that facilitate offshore structures or fail to meet information-exchange standards. In the Western imagination, “tax haven” connotes liberal microstates or offshore centres, yet Vietnam, governed by a Communist Party, now sits on the same list. This reflects the reality of Vietnam’s hybrid economic model: politically socialist, but economically pragmatic since the Đổi Mới reforms of the late 1980s, with selective tax incentives for special economic zones, high-tech investments and priority sectors that, in certain cases, can significantly reduce the effective tax burden for foreign investors. The EU’s concern is not Vietnam’s headline corporate tax rate but rather-at this stage-the absence of adequate exchange-of-information infrastructure, though the architecture of its preferential regimes has also attracted scrutiny in the past. The listing is a technical compliance issue, not an ideological one. 

          Why Vietnam was added: the listing criteria and timeline

          Vietnam has been subject to EU scrutiny since the very first iteration of the EU list in December 2017, when it was placed in Annex II (the “grey list”) alongside jurisdictions that have committed to reform but are not yet fully compliant. In October 2025, Vietnam was removed from Annex II after fulfilling its commitments on country-by-country reporting (CbCR), and appeared, at that point, to be on the path to full compliance. However, shortly afterwards-in November 2025-the OECD Global Forum published its peer review and rated Vietnam “Non-Compliant” with respect to the standard on Exchange of Information on Request (EOIR), a separate compliance area from CbCR, finding that further reforms remained outstanding and that improvements in the CbCR exchange framework were not expected before 2027. This OECD finding directly triggered the February 2026 move to Annex I-an escalation from the grey list to the blacklist, bypassing any intervening period of full compliance.

          The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), requiring compliance with AEOI and EOIR standards and membership of the Multilateral Convention on Mutual Administrative Assistance in Tax Matters; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.

          Vietnam’s response and the path to delisting

          Vietnam’s Ministry of Foreign Affairs responded publicly within days of the listing, defending the country’s tax transparency record and stating that the government is implementing a national action plan to follow OECD recommendations and expand tax cooperation with partners including the EU. Vietnam expressed readiness to engage with European authorities to ensure more objective and comprehensive assessments, and to promote cooperation for shared development and prosperity. Practitioner commentary suggests a concrete roadmap is achievable: with legislative amendments (decrees and circulars on EOIR procedures), the establishment of a dedicated EOIR unit, publication of enforcement statistics, and active technical engagement with the EU Code of Conduct Group from now through September 2026, Vietnam could realistically target removal from Annex I at the next EU review cycle in October 2026, although this timeline is ambitious and delisting is by no means guaranteed. The key point for EU businesses is that, while the listing may be relatively short-lived if Vietnam acts decisively, companies should not delay compliance preparations in reliance on early delisting-a proportionate, risk-based response is more appropriate than a wholesale restructuring of Vietnam-linked supply chains.

          How different payment types are affected in practice

          Goods (imports) are often the most straightforward in substance terms because there is usually a clear chain of documents: purchase orders, shipping documents, customs import paperwork, delivery notes, inspection/acceptance records and matching invoices.

          The risk uplift for goods is typically not about whether the purchase is real, but whether the overall supply chain and pricing remain coherent under scrutiny-for example, whether margins and intercompany arrangements around the import flow make commercial sense and are consistently documented.

          Services (outsourcing, consulting, IT development, marketing, support) tend to attract more questions because “what was delivered” is harder to evidence than a shipped product.

          If your EU entity pays a Vietnamese provider for services, expect to need a well‑organised evidence pack: a clear scope of work, time records or milestones, deliverables (reports, code repositories, tickets), acceptance sign‑offs, and a pricing rationale that matches the level of skill and effort involved.

          Royalties and IP-related payments (software licences, trademarks, know‑how, technology access) are particularly sensitive because they combine valuation complexity with cross‑border tax characterisation questions.

          Expect pressure-testing of (i) who truly owns and controls the IP, (ii) the contract chain and sublicensing rights, (iii) how the royalty rate was set using benchmarking or comparable arrangements, and (iv) whether the payment is genuinely for IP rather than a disguised service fee.

          Intragroup charges (management fees, shared services, cost recharges) are commonly the first area where tax authorities and counterparties ask for “benefit” evidence and allocation logic.

          Where Vietnam sits inside a group value chain, be ready to show why a charge exists, how it was calculated, how the recipient benefited, plus consistent intercompany agreements and transfer pricing support.

          Financing and treasury flows (interest, guarantees, cash pooling, factoring, trade finance) trigger the most intensive technical review because they involve both tax outcomes and financial crime/compliance sensitivities.

          Even where the structure is legitimate, these flows are more likely to be escalated internally for enhanced review and may require more supporting documentation before execution.

          How European banks may respond (and what that looks like in practice)

          Banks in the EU operate under a risk‑based approach to financial crime and compliance, and they may apply de-risking decisions, meaning they can choose to restrict or exit relationships or transaction types they view as exceeding their risk appetite or being operationally too costly to monitor. EU supervisory frameworks acknowledge that de-risking exists and call for proportionate, evidence-based risk assessments rather than indiscriminate blanket exclusions, but in practice banks have significant discretion.

          For an EU company initiating a bank transfer to a Vietnamese counterparty, the following discretionary measures can arise in practice, even where the payment is entirely lawful and commercially routine.

          A bank can pause execution and request additional documents before releasing funds, seeking comfort on the purpose and legitimacy of the transaction under its internal controls.

          Typical requests include the underlying contract or statement of work, invoices, proof of delivery or performance, an explanation of business purpose, and information on the beneficiary’s beneficial ownership or corporate structure.

          A bank can route the payment through manual review queues rather than straight-through processing, particularly for first-time beneficiaries, unusually large amounts, or payments with vague narratives that do not clearly describe the purpose.

          This creates operational knock-ons: late supplier settlement, goods held pending payment confirmation, or service suspension where the vendor operates on strict payment triggers.

          A bank can impose internal conditions as part of its customer-specific risk controls-for example requiring richer payment details, stricter invoice descriptors, or pre-approval workflows for Vietnam-corridor payments.

          A bank can decline to process specific transactions or decide to exit certain corridors, client types, or business models entirely as a risk-management choice. German financial institutions are described as applying enhanced due diligence, requiring full transparency of transaction purpose and ownership for Vietnam-linked payments.

          Where a payment is declined, the practical solution is often to adjust the execution setup-alternative banking channel, revised documentation pack, or modified payment mechanics-while keeping the underlying commercial relationship intact.

          EU companies are advised to develop a “Banking Compliance Pack” for Vietnam-corridor payments: a pre-assembled set of documents (contract, invoice, proof of delivery/performance, business rationale memo, and beneficial ownership information) that can be submitted proactively or in response to bank queries within hours rather than days.

          Non-tax defensive measures and EU funding implications

          Beyond tax measures, being on the EU blacklist triggers non-tax consequences that affect Vietnam’s economic relationship with the EU more broadly. EU investment programmes cannot channel funding through entities located in Vietnam, because using such an entity contradicts the core legal purpose of these funds, which are designed to promote good governance, transparency, and the fight against illicit financial flows. Affected funds include the European Fund for Sustainable Development (EFSD/NDICI), which de-risks major investments in areas like energy and digital; the InvestEU programme (which replaced the former EFSI); and the External Lending Mandate (ELM), which provides EIB loans for major infrastructure outside the EU. In addition, the General Framework for STS securitisation imposes separate restrictions on the use of entities in blacklisted jurisdictions within securitisation structures. For Vietnamese entities and their EU partners working on donor-funded or ESG-driven projects, this can be a significant constraint, as subsidiaries and other businesses in Vietnam may be cut off from these sources of EU financing.

          DAC6 reporting and public country-by-country reporting

          Cross-border arrangements involving Vietnam are now subject to heightened DAC6 scrutiny. In particular, Hallmark C.1(b)(ii) may be triggered where a deductible cross-border payment is made by an EU-based associated enterprise to a tax resident in Vietnam, subject to Member State-specific implementation of the main benefit test and other conditions. Large multinationals (consolidated revenue of EUR 750 million or more in each of the last two fiscal years) must also prepare and publicly disclose a Public Country-by-Country Report. Under the EU Public CbCR Directive, Vietnam activities must be reported separately-not aggregated as “Rest of the World”-disclosing a list of all consolidated subsidiaries, description of activities, number of full-time equivalent employees, revenues (including related-party revenue), profit or loss before tax, income tax accrued and paid, and accumulated earnings. For FY 2025 and FY 2026, Vietnam information is already reportable separately by affected multinationals.

          Country notes (alphabetical)

          Belgium: Belgium applies non-deductibility of costs, CFC rules, and participation exemption limitations linked to both the EU list and certain domestic criteria. A critical Belgian-specific rule is the reporting obligation for payments made to entities in blacklisted jurisdictions where the aggregate of such payments exceeds EUR 100,000 in the taxable period; once this threshold is met, each such payment must be reported in the annual tax return, and any payment that is not reported, or that cannot be justified on specific grounds, is not deductible. Belgium follows a dynamic approach to the EU list, meaning EU list updates take effect automatically without a further domestic step. For Belgian payers, immediate practical priorities are: (i) identifying all Vietnam-linked payment streams above EUR 100,000, (ii) ensuring the reporting mechanism in the annual tax return is in place, and (iii) building the justification file for each reported payment.

          France: France applies all four defensive measures-non-deductibility of costs, CFC rules, withholding tax, and participation exemption limitation-but via a national decree-based list that refers to the EU list while also applying additional French domestic criteria. France follows a static approach, updating its domestic non-cooperative state list through an annual Decree in the Official Journal, with tax consequences applying from the first day of the third month following publication. The last French update took place in April 2025, and at the time of writing (May 2026) no subsequent decree incorporating Vietnam has been published. A further update is expected imminently and will likely include Vietnam. Once Vietnam appears on the French list, key measures include: a 75% withholding tax on interest, royalties, dividends and service fees (counterevidence possible); denial of the participation exemption (counterevidence possible for jurisdictions meeting certain criteria); denial of deductibility of interest, royalties and service fees (counterevidence possible); and a stricter CFC rule under which the burden of proof is reversed and foreign withholding taxes cannot be credited against French CFC income. French payers should monitor the next French decree closely and prepare counterevidence files now so they are ready the moment the decree is published.

          Germany: Germany applies all four defensive measures through the Tax Haven Defence Act (Steueroasen-Abwehrgesetz, StAbwG), linked to the EU list via a Tax Haven Defence Ordinance that is updated once per year, typically at year-end taking into account the October EU list update. The expected sequence for Vietnam is: December 2026-amendment to the Tax Haven Defence Ordinance to incorporate Vietnam; from 2027 (Year 1)-stricter CFC rules and extended withholding tax of 15% (plus a 5.5% solidarity surcharge) apply to income from financing relationships, insurance or reinsurance services, legal and advisory services, and trading of goods and services; from 2029 (Year 3)-denial of the participation exemption activates; from 2030 (Year 4)-denial of deductible business expenses activates. Importantly, Germany’s extended withholding tax can override double tax treaties. The multi-year ramp-up means that immediate German impacts are CFC scrutiny and withholding tax friction on specific payment types, while the broader expense deduction denial will only bite from 2030 onwards-giving German payers time to prepare, but making early documentation investment worthwhile.

          Italy: Italy uses the EU list for monitoring and deductibility purposes under Article 110 TUIR: costs connected with counterparties in Annex I jurisdictions are generally deductible up to “normal value,” while amounts above normal value require evidence of an effective economic interest, and all such costs must be separately indicated in the annual income tax return (Modello REDDITI). Italy’s framework is directly triggered by the EU list, meaning Vietnam’s Annex I status is effective for Italian purposes from the publication of the Council conclusions in the EU Official Journal, without any further domestic implementing step being required.

          For Italian payers, service costs, royalties, and intragroup charges to Vietnam are the most sensitive categories: robust documentation of deliverables, pricing and economic rationale is essential, and accounting teams need to ensure they can cleanly isolate Vietnam-linked costs in the year-end reporting workflow.

          Malta: Malta follows a dynamic approach to the EU list, meaning Vietnam’s Annex I status takes effect automatically in Malta’s tax framework. Malta applies a limitation of the participation exemption on dividend income derived from a participating holding in a body of persons that has been resident in a jurisdiction on the EU list for a minimum period of three months during the year immediately preceding the year of assessment, subject to a counter-evidence exception based on “people functions.” Malta does not apply non-deductibility, CFC, or withholding tax defensive measures against EU-listed jurisdictions as primary tools, so the main Malta-specific concern for holding and investment structures is participation exemption eligibility and substance evidence. For Malta-based groups, the practical response is to keep board materials, contracts, and commercial rationale tightly aligned, and to prepare for more intensive counterparty due diligence (beneficial ownership, substance, and tax residency) from EU customers and financial institutions.

          Netherlands: The Netherlands applies a 25.8% conditional withholding tax on interest, royalties, and (since 1 January 2024) dividends paid to related entities in EU-listed jurisdictions or low-tax jurisdictions, as well as CFC rules with counterevidence possible. The Netherlands follows a static approach: the list applicable for a tax year is based on the EU list as it stood at the end of the preceding year, using the October update as the reference. This means the Dutch 2027 Regulation will include Vietnam only if Vietnam remains on the EU list after the October 2026 review cycle. No withholding tax consequences arise for Dutch payers immediately in 2026 as a direct result of Vietnam’s February 2026 listing, but the October 2026 review date is critical: if Vietnam remains listed, Dutch conditional withholding tax obligations will activate from 1 January 2027. Dutch payers with intragroup dividend, interest, and royalty flows to Vietnam should use the current window to restructure documentation and pricing support and to assess whether existing double tax treaty protections remain effective in light of the conditional WHT mechanics.

          Spain: Spain does not mechanically mirror the EU list, but operates its own domestic list of non-cooperative jurisdictions, which is updated separately and can include or exclude jurisdictions differently from Annex I. Spain applies a static approach, with the list specified in law. The practical implication is that the Spanish domestic tax consequences of Vietnam’s listing depend on whether and when Spain updates its domestic list to include Vietnam, rather than arising automatically from the EU Council’s February 2026 decision. For Spain-based procurement and finance teams, do not assume a one-to-one mapping between EU-list status and Spanish domestic tax outcomes, but do treat Vietnam-linked transactions as higher-scrutiny items from an audit and counterparty due diligence perspective, and invest in cleaner contracting, invoice narratives, and performance evidence for services, royalties, and intragroup charges.

           

          Practical next steps for EU companies

          1. Map exposures: Identify and quantify all payment streams relating to Vietnamese entities, broken down by payment type (goods, services, royalties, intragroup charges, financing).
          2. Understand your Member State’s rules: Confirm which defensive measures apply in the relevant EU payer jurisdiction, when they take effect (immediately or staged), whether the jurisdiction follows the EU list dynamically or statically, what relief conditions exist, and what documentation is required.
          3. DAC6 readiness: Assess whether Vietnam-linked arrangements trigger DAC6 reporting obligations (particularly deductible cross-border payments between associated enterprises) and ensure reporting infrastructure is in place.
          4. Transfer pricing and substance: Validate intercompany services, royalties and financing arrangements by reassessing pricing, benefit tests and contractual terms; strengthen contemporaneous documentation before year-end.
          5. Public CbCR messaging: If within scope, assess public CbCR disclosure implications for Vietnam operations and align tax, legal, ESG and investor-relations communications accordingly.
          6. Vendor due diligence: Implement or strengthen due diligence on Vietnamese counterparties, including tax residence evidence, beneficial ownership documentation, and substance and economic activity confirmation.
          7. Banking compliance pack: Build a pre-assembled documentation pack for Vietnam-corridor payments (contract, invoice, proof of delivery/performance, business rationale, beneficial ownership information) to address bank queries within hours rather than days.
          8. Monitor the October 2026 review: Track Vietnam’s progress on EOIR reforms and the EU Code of Conduct Group’s October 2026 review cycle. If Vietnam is removed from Annex I in October 2026, Member States that follow a static approach (Germany, Netherlands) will not apply defensive measures to Vietnam in their 2027 rules; France, which also follows a static approach but applies additional domestic criteria, may nonetheless retain Vietnam on its own non-cooperative state list even after EU delisting. The October 2026 outcome is therefore commercially significant for medium-term planning.
          9. Embed internal governance: Install jurisdiction-risk gateways in approval workflows for new entities, contracts, loans, and IP arrangements involving Vietnam, to ensure proper sign-off and documentation from inception.

          Under French Law, franchisors and distributors are subject to two kinds of pre-contractual information obligations: each party must spontaneously inform their future partner of any information they know is decisive to their consent. In addition, for certain contracts – i.e a franchise agreement – there is a duty to disclose a limited amount of information in a document. These pre-contractual obligations are mandatory rules of public policy. Thus, these two obligations apply simultaneously to the franchisor, distributor or dealer when negotiating a contract with a partner.

          Takeaways

          • The information required by the DIP must be fully completed and updated ;
          • The information not required by the DIP but provided by the franchisor must be carefully selected and sincere;
          • Franchisee must be given the opportunity to request additional information from the franchisor;
          • Franchisee’s experience in the economic sector enables the franchisor to considerably limit its exposure to the risk of contract cancellation due to a defect in the franchisee’s consent;
          • Franchisor must keep the proof of the actual disclosure of pre-contractual information (whether mandatory or not).
          • The general information obligation under common law (Article 1112-1 of the French Civil Code) may apply concurrently with the special disclosure obligation provided for under Article L. 330-3 of the French Commercial Code.

          General duty of disclosure for all contractors

          What is the scope of this pre-contractual information?

          This obligation is imposed on all counterparties, for any kind of contract. Indeed, article 1112-1 of the Civil Code states that:

          (§. 1) The party who knows information of decisive importance for the consent of the other party must inform the other party if the latter legitimately ignores this information or trusts its counterparty.

          (§. 3) Of decisive importance is the information that is directly and necessarily related to the content of the contract or the quality of the parties. »

          This obligation applies to all contracting parties for any type of contract.

          French courts have ruled that this general information obligation may apply concurrently with the special disclosure obligation under Article L. 330-3 of the French Commercial Code (see below), answering the question in the affirmative (Paris Court of Appeal, 27 March 2024, no. 22/12665). The scope of the latter has however, been defined by the French Supreme Court (« Cour de cassation ») : only information bearing a direct and necessary link with the subject matter of the contract or the qualities of the parties is subject to the disclosure obligation (Cass. com., 14 May 2025, no. 23-17.948).

          Who bears the burden of proof?

          The burden of proof rests on the person who claims that the information was due to him. He must then prove (i) that the other party owed him the information but (ii) did not provide it (Article 1112-1 (§. 4) of the Civil Code)

          Special duty of disclosure for franchise and distribution agreements

          Which contracts are subject to this special rule?

          French law requires (art. L.330-3 French Commercial Code) the provision of a pre-contractual information document (in French “DIP”) and the draft contract, by any person:

          • which grants another person the right to use a trade mark, trade name or sign,
          • while requiring an exclusive or quasi-exclusive commitment for the exercise of its activity (e.g. exclusive purchase obligation). The quasi-exclusive nature of the commitment is assessed on a case-by-case basis by French courts, independently of the 80% purchase threshold provided for under EU Regulation 2022/720, which is treated merely as an indicative reference.

          Concretely, DIP must be provided, for example, to the franchisee, distributor, dealer or licensee of a brand, by its franchisor, supplier or licensor as soon as the two above conditions are met. French courts have moreover recently had occasion to confirm that the scope of the DIP obligation is not limited to franchise agreements but extends, in particular, to dealership agreements, provided the above-mentioned conditions are met (Paris Court of Appeal, 22 May 2024, no. 22/08672).

          When the DIP must be provided?

          DIP and draft contract must be provided at least 20 days before signing the contract, and, where applicable, before the payment of the sum required to be paid prior to the signature of the contract (for a reservation).

          What information must be disclosed in the DIP?

          Article R. 330-1 of the French Commercial Code requires that DIP mentions the following information (non-detailed list) concerning:

          • Franchisor (identity and experience of the managers, career path, etc.);
          • Franchisor’s business (in particular creation date, head office, bank accounts, history of the development of the business, annual accounts, etc.);
          • Operating network (members list with indication of signing date of contracts, establishments list offering the same products/services in the area of the planned activity, number of members having ceased to be part of the network during the year preceding the issue of the DIP with indication of the reasons for leaving, etc.);
          • Trademark licensed (date of registration, ownership and use);
          • General state of the market (about products or services covered by the contract) and local state of the market (about the planned area) and information relating to factors of competition and development perspective. With respect to the local market, the French Supreme Court (« Cour de cassation ») has held that the franchisor is not required to conduct a market study, but that if one is provided, it must be accurate and verifiable (Cass. com., 18 Oct. 2023, no. 22-19.329).;
          • Essential element of the draft contract and at least: its duration, contract renewal conditions, termination and assignment conditions and scope of exclusivities;
          • Financial obligations weighing in on contracting party: nature and amount of the expenses and investments that will have to be incurred before starting operations (up-front entry fee, installation costs, etc.).

          Beyond the exhaustiveness of the information required under the aforementioned provision, the DIP is subject to a qualitative standard. All information provided — including information provided spontaneously — must be accurate and truthful to ensure that the prospective network member’s consent is fully informed and free from any defect.

          How to prove the disclosure of information?

          The burden of proof for the delivery of the DIP rests on the debtor of this obligation: the franchisor (Cass. Com., 7 July 2004, n°02-15.950). The ideal for the franchisor is to have the franchisee sign and date his DIP on the day it is delivered and to keep the proof thereof.

          The clause of contract indicating that the franchisee acknowledges having received a complete DIP does not provide proof of the delivery of a complete DIP (Cass. com, 10 January 2018, n° 15-25.287).

          The franchisor is subject to a duty to update the DIP until the contract is signed

          In a ruling dated 26 June 2024 (no. 23-14.085 PB), the French Supreme Court held that formal compliance of the DIP at the time of its delivery is not sufficient to exonerate the franchisor from all pre-contractual liability. This position was confirmed by a subsequent ruling of 4 December 2024 (no. 23-16.684).

          These two decisions appear to establish a duty of ongoing updates incumbent upon the network head throughout the entire period between the delivery of the DIP and the execution of the contract. Where significant events occur during that interval — insolvency proceedings affecting network members, major litigation, or structural changes to the network — the network head is required to proactively inform the prospective member. The court then examines whether the failure to disclose such information was liable to distort the candidate’s assessment of the network and, consequently, to vitiate his consent (Cass. com., 26 June 2024, op. cit.).

          A franchisor may therefore not shelter behind the initial regularity of the DIP to discharge its disclosure duty where the network’s situation has materially changed prior to the signing of the contract.

          Sanction for breach of pre-contractual information duties

          Criminal sanction

          Failing to comply with the obligations relating to the DIP, franchisor or supplier can be sentenced to a criminal fine of up to 1,500 euros and up to 3,000 euros in the event of a repeat offence, the fine being multiplied by five for legal entities (article R.330-2 French commercial Code).

          Cancellation of the contract for deceit

          The contract may be declared null and void in case of breach of either article 1112-1 of the French Code civil or article L. 330-3 of the French Code de commerce. In both cases, failure to comply with the obligation to provide information is sanctioned if the applicant demonstrates that his or her consent has been vitiated by error, deceit or violence. In this respect, courts conduct a concrete, case-by-case assessment, taking into account in particular the professional experience and personal due diligence of the distributor: a sophisticated candidate will face greater difficulty in establishing deceit, and his experience in the relevant sector may be sufficient to exonerate the franchisor (Paris Court of Appeal, div. 5 – ch. 11, 26 Apr. 2024, no. 21/13205), even where the information provided was incomplete or inaccurate (Paris Court of Appeal, 20 Jan. 2021, no. 19/03382).

          The path is therefore narrow for the franchisee: he cannot invoke error concerning profitability when it is he who draws up his plan, and even when this plan is drawn up by the franchisor or based on information drawn up and transmitted by the franchisor, the experience of the franchisee who knew the local market may exonerate the franchisor.

          Regarding deceit, Courts strictly assess its two conditions which are:

          • (a material element) the existence of a lie or deceptive reticence (article 1137 French Civil Code), and
          • (an intentional element) the intention to deceive his counterparty (article 1130 French Civil Code).

          Where applicable, the parties must return to the state they were in before the contract.

          Damages

          Although the claims for contract cancellation are subject to very strict conditions, it remains that franchisees/distributors may alternatively obtain damages on the basis of tort liability for non-compliance with the pre-contractual information obligation, subject to proof of fault (incomplete or incorrect information), damage (loss of opportunity of not contracting or contracting on more advantageous terms) and the causal link between the two.

          From Reporting to Governance and Risk Allocation

          Environmental, Social and Governance (ESG) considerations are playing an increasingly influential role in how businesses operate, invest, and manage risk, especially within the European Union, where corporate sustainability and responsibility regulation have been on the agenda in recent years.

          With the adoption of the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD), many companies anticipated a significant shift in compliance. Since then, the EU has introduced simplification measures to streamline reporting and due diligence obligations, reduce the administrative burden, and improve proportionality, particularly for small and medium-sized enterprises (SMEs), while maintaining the core sustainability objectives.

          While opinions may differ regarding the evolution of environmental, social, and governance (ESG) in EU regulation and the subsequent postponements of reporting obligations, regulatory developments appear to have, in practice, supported a shift in perspective. Sustainability is no longer viewed solely as a reporting requirement, but increasingly as a matter of governance, strategy, and risk allocation. This development is welcome, as the regulatory framework’s underlying objective is to advance the green transition, which in turn requires a change in how companies integrate sustainability into their decision-making and operations.

          This focus on sustainability influences businesses of all sizes, including SMEs. Even companies not directly subject to the CSRD or CSDDD anticipate that ESG requirements will be passed down through the supply chain. Many non-reporting SMEs are already embedding sustainability practices, and this trend is likely to continue. In other words, sustainability policies are already affecting companies well before any formal reporting obligations kick in.

          Environmental, Social, and Governance in Contract Architecture

          One of the key means of implementing environmental, social, and governance obligations and objectives in day-to-day business operations is through commercial contracts and the requirements and commitments embedded in them.

          Even where a company itself is not directly subject to extensive reporting or due diligence obligations, corporate sustainability and responsibility expectations flow through the market via contractual relationships. Larger undertakings within the scope of CSRD and, in due course, the CSDDD require contractual assurances, information rights, and cooperation from their business partners, including SMEs operating within their supply chains. As a result, corporate sustainability and responsibility become a question of contractual architecture. Companies must consider not only price mechanisms, liability caps and termination triggers, but also how environmental, social and governance risks and obligations are addressed and allocated between the parties through legally enforceable contractual terms.

          Translating Policies into Binding Obligations

          A typical starting point is the incorporation of a code of conduct or sustainability policies into commercial contracts, often by reference and through an express obligation on the contracting party to comply with them. From a legal standpoint, this raises important drafting questions. Many codes are drafted as high-level public statements. When such policies are converted into contractual commitments, their wording, scope, and hierarchy relative to the main agreement require careful consideration. The obligations must be sufficiently clear to define the parties’ expectations, coherent with other contractual provisions, and proportionate to the commercial relationship. The obligations must also be capable of practical implementation and effective monitoring in the context of the agreement.

          In practical terms, this may mean requiring the supplier to comply with specific labour standards, maintain documented environmental management procedures, report on emissions data, ensure traceability of key raw materials, or allow reasonable access for audits. Clearly defining what is expected, how compliance is demonstrated, and what consequences follow from non-compliance is essential for the clause to function effectively. Otherwise, clauses that appear comprehensive in theory and ambitious in scope may offer limited enforceability in practice, and their impact may remain marginal if compliance cannot be effectively monitored and verified. If policies are not properly translated into binding and operational obligations, the company risks a mismatch between what it promises publicly and what is actually required under its contracts. This may undermine consistency, weaken risk management, and expose the company to reputational and governance risks if its own stated principles cannot be enforced within its supply or distribution chain.

          As part of this process, companies must also consider the protection of trade secrets and confidential information. For example, broad audit or data-reporting obligations may raise concerns about sensitive business information. Contractual terms should balance transparency with the need to protect legitimately proprietary data. Clauses such as confidentiality agreements or carve-outs for trade secrets can be used to ensure that sharing ESG-related information does not compromise confidential business information or competitive advantages.

          Environmental, Social and Governance Clauses Across Different Contract Types

          Besides codes of conduct and sustainability policies, environmental, social and governance-related clauses increasingly take more tailored and transaction-specific forms. In shareholder agreements, sustainability objectives may be reflected in governance structures or even linked to financial outcomes, for example by aligning dividend policies or incentive mechanisms with agreed climate targets. In employment contracts, obligations may extend beyond general compliance and include participation in corporate sustainability training programmes or adherence to internal sustainability guidelines as part of performance expectations.

          In supply and manufacturing agreements, environmental, social and governance provisions may address traceability of raw materials, emissions reporting, waste management, energy efficiency standards or the right to replace a supplier if its environmental practices materially conflict with the contracting party’s sustainability commitments. Such contractual mechanisms increasingly affect SMEs operating as suppliers, as ESG expectations pass through the supply chain.

          Construction contracts often include detailed requirements regarding material selection, lifecycle impacts, carbon footprint calculations and recycling or waste reduction procedures. For example, in Finland, legislation imposes low-carbon and energy efficiency requirements for new buildings, and a party undertaking a construction project is subject to mandatory reporting obligations relating to construction and demolition waste. These statutory requirements are typically reflected and implemented in the relevant project and construction contracts.

          Across these different contract types, the practical significance is consistent. Environmental, social and governance considerations move from the level of general policy into legally enforceable obligations tailored to each specific legal relationship. Contracts function as a mechanism for allocating responsibility, managing compliance risk and aligning commercial incentives with sustainability objectives.

          Proportionate Monitoring and Audit Rights

          In the contractual implementation and monitoring of environmental, social and governance obligations, audit and information rights play a central role. They are closely linked to effective oversight and form an integral part of a coherent contractual framework. In practice, companies typically seek access to relevant data from their business partners and, where appropriate, establish inspection or audit rights to enable meaningful monitoring and verification, whether conducted directly by the company or, commonly, by an independent expert appointed for that purpose.

          However, such arrangements must remain balanced. Overly burdensome provisions may needlessly disrupt day-to-day operations and reduce the willingness to cooperate, particularly for SMEs with limited administrative capacity. By contrast, well-designed mechanisms that balance transparency with confidentiality and operational feasibility are more defensible and more likely to function effectively in practice.

          Contractual Remedies

          As a general principle, the consequences of a breach are determined by the terms agreed between the parties. In practice, the parties will typically first seek to resolve the matter through discussion and good faith negotiations, allowing the non-compliant party an opportunity to clarify the situation and implement corrective actions within a reasonable timeframe. If negotiations do not lead to a resolution, it may be appropriate to proceed to stronger measures, such as contractual penalties, indemnification obligations, price adjustments, temporary suspension rights or other agreed sanctions, applied in light of the nature and severity of the breach.

          The contract should clearly define what constitutes a breach, how it is assessed and what remedies are available in each scenario. Clear and proportionate step-by-step remedy structures enhance legal certainty, reduce the risk of disputes and ensure that material or repeated breaches may trigger more significant consequences, including termination where justified.

          Strategic and Voluntary Environmental, Social and Governance Commitments

          In the current EU landscape, implementing ESG considerations in commercial contracts is no longer simply a matter of reacting to directives. It is a broader exercise in risk management and corporate governance. Even as the implementation details of the directives may continue to evolve, market expectations, financing conditions and reputational considerations remain key drivers of sustainability integration.

          In addition, some companies choose to position themselves as frontrunners in sustainability for strategic and reputational reasons. They may therefore incorporate voluntary environmental, social and governance mechanisms and requirements into their contracts that go beyond, or are not directly derived from, binding directives. By doing so, they signal to investors, customers and other stakeholders that sustainability is treated as a core business priority rather than merely a compliance obligation.

          At the same time, it is important to recognise the practical limits of such commitments. Ambitious sustainability requirements may be more challenging for SMEs with limited financial and administrative resources. Meeting extensive reporting, certification or traceability standards can require investments in systems, personnel and external expertise. If contractual expectations are not calibrated to the size and capacity of the counterparty, they may limit the ability of SMEs to participate in certain supply chains. A balanced and proportionate approach helps ensure that sustainability objectives remain achievable and commercially workable across the contractual chain.

          Conclusion

          For legal practitioners, the central task is not to increase the number of environmental, social and governance clauses as such, but to ensure their quality, coherence and practical relevance. The objective is to design contractual mechanisms that are proportionate, enforceable and aligned with the company’s actual risk profile, industry context and sustainability priorities. Commercial contracts remain one of the most concrete tools for translating sustainability strategy into operational practice. Moreover, every contract lawyer should understand and apply key sustainability principles in their work, ensuring that ESG commitments become integral to legal advice and contract drafting.

          The Strait of Hormuz is likely the most strategically important point for the global oil trade. In fact, approximately 20% of the world’s oil and gas passes through this narrow passage between the Gulf of Oman and the Persian Gulf every day.

          Following the outbreak of war in the region, the impact on energy markets was almost immediate: oil prices quickly rose above $100 per barrel, and it is unclear how high they may climb in the coming weeks and months. As a result, transportation, production, and procurement costs are rising across industrial supply chains in many sectors.

          For many companies engaged in international trade, this phenomenon creates a very real problem. Contracts signed months (or years) earlier—perhaps at a fixed price—must be fulfilled in a completely different economic context.

          A manufacturer that sells goods for delivery in six or twelve months may find itself producing and shipping at much higher energy costs, while the price agreed upon with the customer remains unchanged.

          This is a situation that recurs cyclically, for various reasons: from the COVID-19 pandemic to the subsequent raw materials crisis, and on to current geopolitical tensions.

          When the increase in costs is so sudden and significant, a question inevitably arises: must the contract still be performed under the original terms, or is it possible to suspend or renegotiate the agreement to adapt it to the new circumstances?

          The answer depends on several factors: first and foremost, on what the parties have (or have not) provided for in the contract, but also on the law applicable to the relationship and on the interpretation that judges or arbitrators may give to the rules in the event of a dispute.

          Force Majeure and Hardship: Two Different Concepts

          When extraordinary events occur—such as a war, an energy crisis, or the disruption of a trade route—many operators immediately invoke force majeure. However, in most cases, these situations fall instead under the category of hardship.

          It is therefore essential to distinguish between these two situations.

          When an Event Constitutes Force Majeure

          Force majeure applies to cases where an extraordinary and unforeseeable event makes it impossible to perform the contract.

          The characteristics of the grounds for exemption from liability depend on the law applicable to the commercial relationship, but generally require:

          • unpredictability of the event;
          • the event being beyond the affected party’s control;
          • the impossibility of avoiding or overcoming the event through reasonable efforts.

          Typical examples include:

          • orders from authorities requiring the suspension of production
          • embargoes or export bans
          • logistical disruptions caused by war

          In these situations, performance is not merely more costly: it becomes objectively impossible. The consequence is that the party unable to perform is generally exempt from liability for the duration of the event.

          Hardship

          The situation is different when performance of the contract remains possible but becomes economically much more burdensome.

          The concept of hardship is generally based on four prerequisites:

          1. an event occurring after the conclusion of the contract
          2. unpredictability and extraordinary nature of the event
          3. a substantial alteration of the economic balance of the contract
          4. excessive burden of performance, but not impossibility

          A sharp increase in the price of oil, gas, or other raw materials often falls into this category.

          Goods can be produced and delivered, but doing so may entail costs far higher than those anticipated when the contract was signed.

          The ripple effect along the international supply chain

          In global industrial supply chains, the same goods are often the subject of a series of consecutive contracts.

          The manufacturer sells to a trader, who sells to a processing company, which resells to an importer in another country, who in turn distributes the product to the end market.

          When a hardship event occurs—such as a sharp rise in energy prices—the effect tends to ripple throughout the entire supply chain.

          The first party affected by the cost increase will try to pass the increase on to its contractual counterpart, who, in turn, will find themselves in the same situation with the next link in the chain.

          The risk is clear: one of the operators in the middle of the chain may face increased upstream costs without being able to pass them on downstream.

          This is one of the most common problems in international supply chains.

          What happens if there is no clause regarding price fluctuations

          In commercial practice, it often happens that parties operate on the basis of orders and order confirmations without a formal written contract, or that a contract exists but contains no provisions regarding price fluctuations or hardship.

          In such cases, when costs increase sharply, it is necessary to determine which law applies to individual sales contracts across the supply chain.

          This can lead to very different situations:

          • one law may allow for price revision or termination of the contract
          • another law aplicable to a second contract may not provide for equivalent remedies
          • a third contract may contain much more restrictive contractual clauses

          The practical result is that an operator in the middle of the chain may face a price increase from their supplier without being able to pass it on to the customer.

          A Common Legal Framework: The Vienna Convention on the International Sale of Goods (CISG)

          Fortunately, many international sales contracts are governed by the 1980 Vienna Convention on the International Sale of Goods (CISG).

          The convention has been ratified by 97 countries, including Italy and most major trading partners, such as the U.S., Canada, China, Germany, France, Spain, etc.

          The central provision is Article 79, according to which a party is not liable for non-performance if it proves that the non-performance is due to an impediment:

          • beyond its control
          • unforeseeable at the time of the conclusion of the contract
          • unavoidable or insurmountable

          Traditionally, this provision has been applied to cases of force majeure.

          In recent years, there has been debate over whether it can also be applied to cases of hardship, but international case law tends to be very cautious.

          International case law on Hardship

          Court decisions reflect a rather strict approach.

          In some cases, even very significant increases in raw material costs have not been considered sufficient to modify or suspend the contract.

          The reasoning is simple: those who operate professionally in international trade must take into account a certain degree of market volatility.

          Only when the increase in costs exceeds an exceptional and unforeseeable level such as to radically alter the balance of the contract can hardship be invoked.

          One of the most frequently cited cases is the Belgian Supreme Court’s decision in the Scafom case, which recognized the right to renegotiate the contract following a 70% increase in the price of steel.

          However, such cases are relatively rare.

          Generic clauses that serve no purpose

          Many contracts contain hardship clauses copied from standard templates (boilerplate).

          The problem is that these clauses often:

          • list the effects of hardship
          • but do not define when hardship actually occurs

          The result is that, when prices rise, the parties may have very different opinions on what constitutes an “exceptional” increase and whether the event in question was “unforeseeable” or not.

          The clause, therefore, does not resolve the issue, but defers it to discussion between the parties and, in the event of a failure to reach an agreement, to the courts or arbitrators.

          What criteria can define a hardship situation

          To make the clause truly effective, it is useful to establish objective parameters.

          Among the most commonly used in international contracts:

          • an increase or decrease in the price of a raw material beyond a certain threshold (±20% or ±30%)
          • an increase in transportation or logistics costs within certain limits;
          • significant fluctuations in the exchange rate beyond a specified range;
          • the introduction of tariffs or trade restrictions

          These parameters, linked to tolerance ranges, allow the parties to quickly and unambiguously identify a hardship event.

          Remedies in the Event of Hardship

          An effective clause should also address how to handle the situation.

          The most common solutions are:

          • renegotiation of the contract in good faith
          • apply an automatic price adjustment
          • appointment of an independent third-party expert to determine the new price
          • temporary suspension of the contract
          • right of withdrawal if no agreement is reached

          These tools allow the parties to manage the crisis without resorting to litigation.

          Audit of existing contracts: what to do now

          At this point, the practical question becomes: how should we manage the issue in existing business relationships?

          The first step is to conduct an audit of existing contracts with suppliers and customers.

          1. Introduce comprehensive contracts in new relationships

          If the relationships are governed solely by purchase orders and order confirmations, it is advisable to take this opportunity to draft comprehensive international sales contracts that include:

          • a hardship clause
          • warranty provisions
          • remedies for breach
          • limitations of liability

          2. Update existing contracts

          If the relationship is already governed by a contract, you should check whether a hardship clause exists.

          If not, it may be useful to propose to the other party:

          • a new contract, or
          • a contract addendum dedicated to managing price fluctuations.

          This helps prevent future conflicts and provides both parties with an effective tool to manage potential price shocks along the supply chain.

          Conclusion

          Commodity and energy crises demonstrate how exposed international contracts are to sudden changes in economic conditions. When a contract does not clearly address hardship management, the risk does not disappear; it simply shifts along the supply chain until it settles on the weakest link.

          For this reason, companies operating within international supply chains should view the hardship clause as a strategic tool for managing contractual risk. A well-drafted contract does not eliminate market volatility, but it allows the parties to address it with clear rules, reducing uncertainty and preventing disputes.

          Executive Summary

          The African Continental Free Trade Area (AfCFTA) remains one of the most ambitious integration projects in the world. Yet, several years into its operational phase, it has not (yet) delivered the structural shift many expected. A recent analysis underscores the gap between political momentum and economic reality: implementation remains uneven, the agreement is still used by only a portion of participating states, and non-tariff barriers and infrastructure deficits continue to dominate the cost of doing business across borders.  For Egypt, the opportunity is still real — but it depends less on treaty headlines and more on enabling conditions: trade logistics, customs efficiency, regulatory convergence, and competitive industrial capacity. 

          Looking Back: The Promise of a Single African Market

          When the AfCFTA was launched, expectations were understandably high. A continent-wide trade framework was supposed to reduce tariffs, facilitate trade in goods and services, and strengthen regional value chains — with the broader goal of moving African economies up the value ladder.

          In my 2022 article, I asked whether AfCFTA could become a game changer for Egypt, given Egypt’s industrial base, strategic geography, and the potential to diversify export markets beyond traditional partners. (For background, see the earlier article here”).

          The Reality Check: Intra-African Trade Remains Structurally Weak

          Several years later, the interim assessment is sobering. As the Frankfurter Allgemeine Zeitung (FAZ) recently put it, AfCFTA is not a “game changer” yet, and only about half of member states currently meet the practical prerequisites to trade under the agreement.

          A deeper reason is structural: no other world region trades so little with itself, and while statistics may undercount informal cross-border flows (especially in food), the overall picture remains unchanged.

          Trade integration cannot deliver transformative outcomes if production, logistics, and institutions do not support scale.

          Implementation Has Been Slow — and Often Symbolic

          Operationalisation did not start with full-scale liberalisation. Instead, the AfCFTA began with a pilot approach: the Guided Trade Initiative (GTI) launched in October 2022, initially with eight states, later joined by additional countries, including Nigeria and South Africa by spring 2025.

          The GTI created valuable learning effects, but it also underlined a key point: early progress was often presented through symbolic deals, while product coverage and volumes remained limited. FAZ highlights that only selected goods could be traded duty-free and that key sectors remained constrained for a long time due to missing or unresolved technical rules.

          A pilot, however, cannot substitute for full operational certainty — the kind businesses need to restructure supply chains and invest.

          Tariffs Are Not the Main Barrier — Trade Costs Are

          AfCFTA is frequently discussed in terms of tariff liberalisation. Yet, evidence suggests that the largest gains do not come from tariffs but from reducing non-tariff barriers and improving trade infrastructure.

          FAZ points to a central reality: tariffs tend to add around 20–30% to intra-African trade costs, whereas non-tariff costs can be far higher — driven by bureaucracy, lack of harmonised standards, inefficient border processes, and transport barriers.

          This is the crux: even with reduced tariffs, trade will not expand meaningfully if goods still cannot move cheaply, quickly, and predictably.

          Integration Complexity and Distributional Politics

          Africa’s integration landscape is shaped by multiple overlapping regional economic communities and trade regimes. This creates legal and administrative complexity — often described as an integration “spaghetti bowl.” FAZ notes the challenge of coordination and the continued fragmentation of rules.

          There is also a political economy dimension. Intra-African trade is heavily influenced by a small number of larger economies — and the distribution of benefits matters. FAZ highlights the dominance of major players (notably South Africa) and the concern that tariff liberalisation alone may entrench existing industrial advantages.

          Where governments expect asymmetric outcomes, resistance often takes the form of delay, narrow implementation, or persistent non-tariff barriers.

          What This Means for Egypt: The Opportunity Is Real — But Conditional

          Egypt’s strategic case for AfCFTA participation remains strong: industrial potential, geographic location, and the opportunity to access and shape growing markets. But the experience so far suggests that the treaty text alone does not generate trade flows.

          For Egypt’s private sector, the decisive factors are practical:

          • predictable and efficient customs clearance and border procedures,
          • logistics corridors and port efficiency,
          • regulatory convergence (standards, certification, compliance),
          • stable access to trade finance and payments,
          • competitive energy and production conditions for manufacturing and processing.

          AfCFTA can support these developments — but it cannot replace them.

          The “Game Changer” Pathway: What Must Happen Next

          FAZ concludes that AfCFTA will only become truly impactful if it is paired with the fundamentals: major infrastructure investment, stronger production and processing capacity, and a credible industrial policy.

          At the same time, Africa faces a classic chicken-and-egg problem: without development there is limited investment appeal; without investment there is limited development.

          For Egypt and its partners, a pragmatic strategy would be to:

          1. treat AfCFTA as a platform for real trade-cost reduction, not only tariff debates;
          2. focus on a limited number of scalable corridors and sectors where regional value chains can realistically grow;
          3. strengthen implementation capacity so that preferences become usable for firms — especially SMEs;
          4. enhance legal certainty and dispute resolution reliability for cross-border commerce.

          Conclusion

          AfCFTA remains a landmark achievement in terms of political commitment. But as of today, it has not yet been the “game changer” many hoped for.

          For Egypt, the key question is no longer whether AfCFTA is visionary — it is. The question is whether governments and businesses can translate it into lower real trade costs, higher competitiveness, and bankable cross-border transactions. If those enabling conditions improve, AfCFTA’s promise can still become commercial reality.

          After “Liberation Day,” many foreign companies offered discounts to American importers to help them offset the tariffs. A few months later, the US Supreme Court declared the „reciprocal“ tariffs unlawful, but on the same day, President Trump announced new tariffs. In this article, we provide a practical overview of how to handle various scenarios, shifting from a reactive, unstructured approach to deliberate management of price volatility and trade flows caused by the introduction, adjustment, and removal of tariffs.

          Tariff Sharing agreements

          For a long time, the question has been straightforward: who absorbs the extra customs cost? The exporter? The importer? Both? The question remains important, but today it is incomplete.

          The new scenario, in light of the recent ruling by the US Court of Justice on March 20, 2026, is: what happens if that duty is then canceled and refunded? If the cost was shared between the parties, the benefit of the refund must follow a consistent logic. In the absence of a clear agreement on this point, however, there is a risk of economic misalignment that could compromise the commercial relationship.

          Let’s imagine an Italian winery that sells its products to a US importer. Following the introduction of reciprocal duties, the parties have decided that the exporter will grant an extraordinary discount of 7.5%, explicitly motivated by the need to share the impact of the duty. The commercial relationship continues, volumes remain stable, and the importer avoids passing on the entire increase to the end customer.

          As a result of the Supreme Court ruling (or, in the future, another ruling or administrative decision), the importer obtains a refund of the duties paid during that period.

          If no formal agreements have been made on this point and the documentation refers generically to a „commercial discount“ and says nothing about reimbursement, the situation afterward may be difficult to reconstruct and, above all, could lead to commercial tension. As a result, a positive development (the cancellation of the duty and the right to reimbursement) becomes a problematic factor that jeopardizes the relationship.

          Is the exporter entitled to a refund of the discounts granted to mitigate the duties?

          In the absence of a different agreement between the parties, the right to reimbursement belongs to the party who paid the duty, i.e., in most cases, the importer. Therefore, there is a risk that the importer will enjoy a double benefit (the discount and the duty refund), while the exporter will get nothing.

          For this reason, it is essential that the parties do not limit themselves to negotiating prices and discounts, but also establish the consequences of the adoption, modification, or revocation of duties on the contract, including any refunds.

          To achieve this, the first step is to accurately classify and document the discounts granted. If only a „commercial discount“ appears in emails, commercial orders, credit notes, and invoices, it will be harder to later argue that this discount was actually an extraordinary, temporary contribution related to the duty. Conversely, if the documentation and contract specify that it is a tariff sharing or tariff mitigation measure, identifying the amounts to be refunded after the fact becomes much simpler.

          The goal is to create a clear view of the trend in discounts and payments so that, if needed, financial flows can be adjusted to align with the original terms of the agreement: if the exporter has helped cover a cost that then, in whole or in part, does not end up materializing, they will be eligible for a refund of the contribution paid.

          The contract will therefore include, in addition to the Tariff Sharing clause, a Tariff Reimbursement Allocation clause, which states that if the importer receives a refund, credit, or any other economic benefit related to the duty for which the exporter has granted a discount, the importer must return the corresponding portion of the benefit to the exporter in full. or proportionally, depending on how the parties intend to distribute risk and incentive.

          Importer’s responsibility to seek reimbursement

          It is unclear whether, in the case of US reciprocal duties, importers can simply file an administrative claim to get a refund or if legal action will be required. The latter seems more probable.

          Generally, obtaining a duty refund involves action, deadlines, documentation, and coordination with brokers and customs consultants. In most cases, the entity controlling the process is the importer (or someone acting on their behalf).

          This raises a sensitive but very real issue: if the importer knows that they will have to invest time and money to obtain a refund, only to then have to share the benefit with the exporter, their incentive to take action may be reduced. To prevent this inertia  the contract should contain an express obligation to take action, set out as a duty of best efforts or commercially reasonable efforts.

          For example, the contract should specify that the importer must inquire about the conditions and time limits of the process, keep relevant documentation, regularly inform the exporter about the progress of the initiatives, and not unilaterally waive or reduce the claim if it affects the exporter’s economic rights.

          Preventive Agreements on Litigation and Cost Allocation

          When reimbursement involves a lawsuit or structured legal action, the obstacles are organizational and financial: who decides if and when to proceed, who selects the lawyers, who pays the costs upfront, how the net recovery is divided, and who has the final say on a settlement. This generally applies to all contracts, not just this case: dispute resolution methods must be addressed and agreed upon before the problem arises.

          Otherwise, the dispute resolution process risks becoming a secondary improvised negotiation at the worst time — when the parties are already under pressure from margins, cash flow, and regulatory uncertainty. As a result, it becomes much harder to reach an agreement.

          How to handle new tariffs and their potential cancellation

          To safeguard against uncertainty, the agreement should be organized into two stages.

          • The first stage regulates the immediate impact of the change in scenario, for example, the introduction of a new tariff or its increase (renegotiation, cost sharing, automatic adjustment : I discussed this in this article).
          • The second stage manages the possible „rollback“ (right to reimbursement, process, allocation criteria).

          This approach has a clear benefit: it does not force the parties to discuss every time the tariff regime changes or a decision to cancel tariffs is made. Instead of reacting to market changes, a tool is adopted to manage potential scenarios, which is much more resilient commercially and easier to oversee, as the rules have already been agreed upon.

          This allows the impact of duties to be regulated not as an extraordinary variable, to be agreed upon on a one-time basis, but as a structural, adaptable phenomenon that could last a long time.

          This is why it is crucial to know how to draft contracts that cover both the current situation and potential changes, including any refunds.

          Conclusion: Three practical steps for companies exporting to the US

          The first is to agree on the consequences for the contract of the introduction of a new duty, increasing it, or revoking it (renegotiation, cost sharing, automatic price adjustment, right to share the refund).

          The second is to clearly document any discount granted to offset a duty. If it remains a generic „commercial discount,“ the right to a refund if reimbursement occurs will be much harder to enforce.

          The third step is to determine what happens if the duty is canceled or revoked: the importer’s responsibility to take action to get a refund, manage the administrative process or litigation, how to divide costs, who oversees the activities of consultants and lawyers, and how the recovered funds will be allocated.

          How do you approach negotiating a trade agreement with China?

          Based on my experience, let’s examine the issues to be addressed and the main questions to ask, taking the negotiation of a trade distribution agreement as a practical example.

          Let’s start with the first issue that is important to clarify.

          Nice Business Card – But Who Is This Guy?

          Business cards, websites, printed or digital brochures, presentations, and any other materials shared in English have no official value in China.

          The company name of the counterparty and the first and last names of people representing it or acting on its behalf, written in English, are only fictitious names.

          To be certain of the company’s data and the identity of the persons, it is necessary to ask for the information in Chinese, with particular reference to the company’s business license (equivalent to the Companies House or Chamber of Commerce’s excerpt), from which the name, corporate purpose, registered and paid-up share capital, and the name of the legal representative can be inferred.

          The data can then be verified by accessing the portal of the State Administration of Industry and Commerce (SAIC) of the province where the Chinese party is based.

          This first verification is essential to ensure that you do not waste time or even run into scams (here’s an in-depth article on Legalmondo’s blog).

          If You Don’t Own Your Trademark, Someone Else Will – and Charge You for It

          Trademark First, Trade Later. China operates on a first-to-file system for trademarks, which means that the first person or company to register a trademark – not necessarily the original creator or most famous user – gains the legal rights to it. This creates a serious risk: if you haven’t registered your trademark in China, someone else might do it before you, and then either use it freely or demand a hefty ransom to give it back. Even high-profile figures like Elon Musk and Michael Jordan have been entangled in costly and protracted disputes with Chinese trademark squatters. In many cases, getting the mark back is highly complicated, and sometimes legally impossible.

          To avoid this, register your trademarks early, even before entering the Chinese market. File directly with the China Trademark Office (CTMO) and don’t stop at the English version — consider registering a Chinese character version as well, since that is how your brand will often be known locally.

          Once that base is covered, clearly state in your contract that your Chinese partner is not allowed to file a registration of any of your trademarks in China, in Latin or Chinese characters, and that he will use trademarks and IP rights in strict conformance to the contract and your instructions.

          For a deeper dive into how to effectively protect your IP rights in China, check out our detailed article on the Legalmondo blog.

          Contracts can wait. First, get on the same page

          When negotiating with a Chinese partner, it’s often a mistake to begin the conversation by exchanging contract drafts. Instead, focus first on the substance — the relationship’s commercial and technical terms. Using a clear checklist of key discussion points (such as products, pricing, delivery terms, technical standards, after-sales support, exclusivity, duration, payment terms, etc.) helps ensure that both sides are aligned on what really matters. Take detailed notes and keep minutes of the discussions, especially where and when consensus is reached, and make sure those minutes are circulated and expressly agreed upon. Once substantial agreement has been achieved on the main terms, this memo can then be handed over to your lawyer, who will translate the business understanding into clear and coherent contractual language. This approach saves tons of time, as it helps avoid unnecessary back-and-forth on legal language before the core deal is in place.

          Think Your NDA Covers You in China? Think Again

          Yes, they are—and often underestimated. A well-drafted Non-Disclosure Agreement (NDA) is essential when the parties plan to exchange confidential information, such as technological know-how, commercial strategies, supplier data, or client lists. Especially in the early phases of negotiation or cooperation, before a main contract is signed, an NDA helps protect intellectual and business assets.

          However, as with all contracts in China, a generic NDA template copied from other jurisdictions will likely be of limited use. To be truly effective, the NDA must be adapted to the specifics of the Chinese legal environment. This includes ensuring that it is enforceable in China: the NDA should include the proper dispute resolution mechanism (see below on why you should consider applying Chinese law and litigating in China), and it must specify clear, valid, and proportionate penalties for breach. In Chinese practice, stating specific contractual penalties (liquidated damages) is often more effective than vague references to compensation, as courts and arbitrators in China tend to enforce these more reliably if they are reasonable.

          While a good NDA is useful, it often falls short in China’s manufacturing and sourcing landscape. This is where the NNN Agreement – standing for Non-Disclosure, Non-Use, and Non-Circumvention – becomes critical. Unlike standard NDAs that primarily focus on confidentiality, an NNN Agreement is designed to address the unique risks of doing business in China. It prevents the recipient from not only disclosing confidential information but also from using it for their benefit or bypassing the disclosing party to work directly with suppliers, clients, or partners. Which, in China, is a very real risk.

          This broader scope is vital when dealing with Chinese manufacturers or intermediaries, who may otherwise be tempted to replicate products or contact customers directly or through third parties. As seen with the NDA, also the NNN Agreement must be drafted in Chinese, governed by Chinese law, and enforceable in Chinese courts -otherwise, it may offer little real protection.

          Joint venture? Easy, Cowboy

          A joint venture is often the first proposal that comes up when negotiating with a potential Chinese partner. It seems appealing: sharing risks and investments, accessing the local market with an ally, leveraging their knowledge and network of contacts. But the reality is often very different from what it appears to be.

          A joint venture is a complex, expensive, and rigid corporate structure that requires significant investments of money, time, and human resources, as well as the ability to continuously manage often divergent interests among the partners. The vast majority of Sino-Foreign JVs have gone wrong, or will go wrong. Or very wrong. First and foremost, because the JV is usually managed by the Chinese partner, and exercising effective control over the company’s operations is a very challenging undertaking.

          Before going down this road, it is essential to ask yourself a few questions: Is the joint venture really indispensable for developing this business in China? (Spoiler: generally, no). Are there less restrictive and risky alternatives, such as a distribution agreement or a licensing agreement? (Yes, almost always). And above all: how well do we really know our potential partner?

          A joint venture should only be considered if it is strictly necessary for the project’s development, after carefully verifying the commercial viability and the reliability of the Chinese partner, and ensuring the ability to maintain effective control over the JV’s operations.

          It is better to start with simpler and more flexible forms of collaboration to test the market and the relationship with the other party before committing to such a demanding investment. Otherwise, the mirage of the joint venture risks turning into a nightmare that can be very costly.

          Memorandum of Understanding: Where Good Intentions Become Bad Contracts

          A Memorandum of Understanding (MoU) is a helpful tool at the early stage of a commercial relationship. It serves as a roadmap for future negotiations, where the parties outline the main principles and intentions that will guide the drafting of the final agreements. When used correctly, an MoU can significantly facilitate negotiations by ensuring that both sides commit to negotiating the agreement in good faith and share a common understanding of key points such as pricing models, territorial scope, exclusivity, milestones, budget, or performance expectations.

          However, an MoU must be used for what it is: a preparatory document, not a binding contract. Care must be taken to avoid ambiguity and unintended commitments. The text should clearly specify that the parties remain free to conclude – or not – the final agreements and which clauses are non-binding – such as the commercial framework or indicative timelines – and which provisions are binding, typically confidentiality, exclusivity during the negotiations (if agreed), governing law, and dispute resolution. A poorly drafted MoU, which includes overly precise and complete terms, can be misinterpreted as a final agreement, creating unnecessary legal risk. So yes, MoUs are valuable – but only when used correctly. If you’d like to know more, go deeper by reading this article.

          Bad Drafts, Big Headaches, Poor results

          Draft agreements used in China are often copied and pasted from incomplete, superficial, poorly organised templates written in bad English, which often do not match the Chinese version of the contract.

          Correcting and integrating these drafts is complicated and more time-consuming than starting from a good template, with suboptimal results.

          It would be better to propose a consistently constructed text and ask the other party to propose any changes and additions to this draft.

          Your Western Contract Template Won’t Work Here

          Even if an English-language contract is perfectly valid, there are many reasons why using contract templates built for other countries in the Chinese market is inadvisable.

          The first is the fact that Anglo-Saxon-based agreements, such as those for the U.S., refer to a common law system (which is based on judicial decisions and case law precedents) that is very different from that of civil law countries (such as China and Italy), which derives from the Roman legal tradition, based on a codified set of written laws.

          It follows that the layout of an agreement on the Anglo-Saxon model is different, much more detailed, and wordy than that of a typical agreement based on a civil law system. Since contract negotiations in China are generally lengthy and complex, working on redundant and complicated text at the outset does not help.

          If we stick to the example of a distribution contract, it should be added that it is advisable to apply Chinese law to provide for arbitration based in China (e.g., at CIETAC) or in Hong Kong or Singapore (third countries, where, however, the costs of the procedure increase significantly) as the mode of dispute resolution. So, the contract should be built on a model that conforms to the law that will apply to the relationship.

          Home Court Advantage Won’t Help You in China. In fact, quite the opposite

          This is a typical point of disagreement in the negotiation of an international contract: the parties aim to have the law of their own country apply, and to stipulate that any disputes be adjudicated by their domestic courts.

          In our case, insisting on the application of Italian (or any other foreign) law and state court is not a good idea: it should be considered, in fact, that a distribution agreement is carried out, for the vast majority, in the country where the distributor operates and where the products are sold (in our case, in mainland China).

          In disputes, the parties‘ (particularly the manufacturer’s) interest is to obtain a quick decision by the adjudicating body, especially if situations requiring immediate protection (such as unfair conduct or counterfeiting of trademarks and patents by the distributor) are ongoing.

          None of this is possible if one goes to an Italian judge (with lengthy litigation time and the need then for a complex and costly process to recognise and enforce the decision in China); on the contrary,  an arbitration in China, applying Chinese law, allows one to reach a decision quickly (on average 6-9 months) and, if necessary, also to obtain urgent measures to stop any unfair conduct.

          Chinese Law Isn’t a Black Box (If You Know What You’re Doing)

          The lawyer assisting you should know it.

          Therefore, it is not a leap in the dark, and one should not fear surprises.

          In addition, it should be remembered that an agreement is primarily based on the covenants that the parties have written in the contract; therefore, if the contract has been well drafted, the rules to be applied are clear.

          Finally, if we consider distribution agreements, keep in mind that they are a framework contract, within which a series of separate product sales contracts are concluded. If both countries are contracting parties to the 1980 Vienna Convention on the International Sale of Goods (CISG), then the uniform, clear, and balanced rules of the convention apply automatically, just don’t opt out!

          One Contract, Two Languages

          The contract is also valid in English only.  However, it is undoubtedly advisable to draft a Chinese version with facing text.

          This is for several reasons: first, it prevents the Chinese party from having to arrange for a translation of the text during negotiations for its own internal use (top managers often do not speak English), thus slowing down the various steps of negotiations.

          Also, to ensure that the Chinese side fully understands the agreement’s content and to avert misunderstandings (real or instrumental) about the interpretation of certain covenants.

          Finally, it should be borne in mind that if the contract were later to be used before a court or administrative authority in China, the only language admitted would be Chinese; for this reason, it is better to have already a text agreed and signed by the parties in Chinese as well, rather than having to prepare a unilateral translation later.

          Sign. And chop

          Does the contract need to bear the company’s official stamp? Yes, and this point is absolutely crucial. In China, a company’s official „chop“ (the red-ink stamp) is equivalent to a signature and is conclusive proof that the person signing the contract has the authority to represent the company. A signature alone, even from someone with an important-sounding title, may not be sufficient if it is not accompanied by the official chop. Without it, the contract might later be challenged or even considered void. Before signing, always verify that the stamp used matches the one registered with the company’s business license or official corporate records, and ensure that the stamp is applied on every page or at least on the signature page, in line with local practice.

          Don’t Let Your Contract Collect Dust

          Things change fast, especially in China. New products are added, market conditions evolve, people leave the company, new competitors emerge on the horizon, and so on. Companies constantly adapt to the new conditions, and so must the contract.

          Any change in the relationship should be formalized correctly. To avoid misunderstandings and disputes, it’s advisable to include an integration clause in the contract, specifying that any amendments or additions will only be valid if agreed in writing, signed by the parties’ authorized representatives, and annexed as an addendum to the original agreement.

          It’s not enough to include this clause – you must follow it consistently. If things change, agreements reached verbally, through Wechat messages, and through email exchanges may make things complicated if they are not formalised adequately according to the procedure set out in the original contract.

          If you’d like to go deeper, check out this article.

          Christian Ule

          Rechtsgebiete

          • Schiedsgerichtsbarkeit
          • Verträge
          • Unternehmen
          • Vertrieb
          • Internationaler Handel
          Kontakt Christian

          Schreiben Sie an Christian





            Legalmondos Datenschutzbestimmungen lesen.
            This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

            US Tariffs | How to Draft Contracts to Handle Tariffs, Refunds, and Disputes

            22. Februar 2026

            • Italien
            • USA
            • Vertrieb
            • Steuer

            Foreign franchisors entering into franchise agreements in Spain should take careful note of the content of the judgment issued by the Provincial Court of Córdoba on November 20, 2025, and require that the partner(s) and the directors of the franchisee company expressly guarantee and indemnify the payment of any debts arising from the franchise agreement.

            Spanish corporate law establishes the principle of liability for the directors of corporations or limited liability companies when the company is subject to dissolution (for example, due to losses that reduce equity to less than 50% of the share capital) and, despite this, they fail to convene a meeting to adopt corrective measures (dissolution or capital increase).

            In the case of the aforementioned ruling, the franchisor was unable to collect the debt arising from the franchise agreement from the franchisee due to the latter’s insolvency; so it decided to claim that debt from the company’s administrator based on the provision mentioned above, that is, due to the fact that the franchisee company was facing dissolution due to losses and the administrator had not convened a shareholders’ meeting, as was his obligation, so that the shareholders could decide how to resolve the situation.

            The ruling we are discussing from the Court of Appeal of Córdoba upholds the lower court’s decision and dismisses the franchisor’s claim against the sole administrator of the franchisee company, stating that:

            With regard to liability for corporate debts under Article 367 of the Capital Companies Act, the court recognised the existence of the corporate debts, the presence of grounds for dissolution, the breach of the legal obligations by the corporate administrator, and his liability, but found that a ground for exoneration from liability existed in accordance with the doctrine of “known risk.” Thus, it was noted that the plaintiff is a franchisor and X. S.L. was the franchisee, and it was evident from the electronic communications that the franchisee was under constant monitoring and the franchisor was aware of the risk involved in the operations, halting the shipment of goods (clothing) as soon as the limits of the guarantees granted were exceeded, meaning the plaintiff voluntarily assumed the risk. For all these reasons, the claim was dismissed.

            In conclusion, and in light of the foregoing, the present franchise relationship and its conduct allow us to consider that it has been established that the franchisor (creditor) had greater knowledge of the franchisee’s (debtor’s) financial situation, beyond the information appearing in the annual accounts filed with the Commercial Registry, as it was the franchisee’s primary supplier. And this knowledge and control of the debt by the franchisor (through the increase in orders) justifies the exoneration of the corporate director’s liability for corporate debts under Article 367 of the Capital Companies Act, which leads to the dismissal of the appeal

            The legal theory or principle of Known/Accepted Risk, to which the judgment refers, holds that harm caused to a third party, with or without a contractual relationship in place, is not considered unlawful if the victim was aware of the risk and voluntarily assumed it.

            This doctrine was initially developed within the framework of tort liability: whoever engages in a risky activity and reaps its benefits must bear its negative consequences, that is, the risk—(cuius commodum, eius incommodum).

            However, case law has extended the application of this theory to the field of contractual liability, as demonstrated in the judgment under discussion.

            Therefore, since the plaintiff was aware of the defendant’s financial situation and solvency—having “monitored” its activity as a franchisor—and despite this, decided to maintain the contract’s validity, thereby increasing the debt, the ruling holds that the franchisor assumed the risk, which constituted grounds for exonerating the administrator from liability. However, more concerning than the above is that this “known risk” theory could be  considered applicable to the liability of the franchisee company itself, which could be exonerated from liability based on the franchisor’s monitoring of its activities.

            The conclusion of all the above is that, based on this application of the known risk theory, franchisors may face difficulties in claiming debts owed by the franchisee company from its directors in the event of the company’s insolvency; therefore, it is highly advisable that, when signing the franchise agreement, a joint and several guarantee for the franchise’s potential future debts be required from its directors and partners, which, moreover, is a fairly standard practice.

            In this way, the objection based on the theory of known risk would not come into play.

            Vietnam has been added to the EU list of non‑cooperative jurisdictions for tax purposes (Annex I), following the Council’s update of 17 February 2026.

            For EU companies buying goods and services from Vietnam, this is not an outright ban on trade, but rather a signal that substantially heightened tax governance scrutiny, documentation expectations, and (in some cases) more demanding payment execution will follow in the months ahead. The EU listing process is designed less to “name and shame” and more to encourage positive change through cooperation and dialogue, but once a jurisdiction is placed on Annex I, EU Member States implement “defensive measures” that can materially affect tax treatment, withholding obligations, and audit intensity for Vietnam-linked transactions.

            What the EU decision does (and does not) do

            The EU blacklist is a tax‑governance instrument: it does not prohibit EU businesses from importing goods from Vietnam or procuring Vietnamese services, and it does not alter Vietnam’s domestic tax regime, corporate income tax rules, withholding tax framework, or investment policies.

            At the same time, the EU can deepen cooperation with Vietnam on the political and economic track while still applying tax‑governance pressure through listing mechanisms, so businesses should be prepared for a “partnership plus scrutiny” environment rather than expecting the two to be perfectly aligned.

            In January 2026, the EU and Vietnam upgraded their relations to a Comprehensive Strategic Partnership, framed as a platform to strengthen cooperation across areas such as trade and investment, climate/energy, sustainable development and digital transformation-a signal that the blacklisting is a technical compliance tool, not a diplomatic rupture.

            The ideological paradox: a Socialist Republic on a tax-haven list

            Vietnam’s presence on the blacklist is striking when viewed in its broader political context. The EU blacklist was conceived after major tax-transparency scandals (the Panama Papers and LuxLeaks) to address jurisdictions that facilitate offshore structures or fail to meet information-exchange standards. In the Western imagination, “tax haven” connotes liberal microstates or offshore centres, yet Vietnam, governed by a Communist Party, now sits on the same list. This reflects the reality of Vietnam’s hybrid economic model: politically socialist, but economically pragmatic since the Đổi Mới reforms of the late 1980s, with selective tax incentives for special economic zones, high-tech investments and priority sectors that, in certain cases, can significantly reduce the effective tax burden for foreign investors. The EU’s concern is not Vietnam’s headline corporate tax rate but rather-at this stage-the absence of adequate exchange-of-information infrastructure, though the architecture of its preferential regimes has also attracted scrutiny in the past. The listing is a technical compliance issue, not an ideological one. 

            Why Vietnam was added: the listing criteria and timeline

            Vietnam has been subject to EU scrutiny since the very first iteration of the EU list in December 2017, when it was placed in Annex II (the “grey list”) alongside jurisdictions that have committed to reform but are not yet fully compliant. In October 2025, Vietnam was removed from Annex II after fulfilling its commitments on country-by-country reporting (CbCR), and appeared, at that point, to be on the path to full compliance. However, shortly afterwards-in November 2025-the OECD Global Forum published its peer review and rated Vietnam “Non-Compliant” with respect to the standard on Exchange of Information on Request (EOIR), a separate compliance area from CbCR, finding that further reforms remained outstanding and that improvements in the CbCR exchange framework were not expected before 2027. This OECD finding directly triggered the February 2026 move to Annex I-an escalation from the grey list to the blacklist, bypassing any intervening period of full compliance.

            The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), requiring compliance with AEOI and EOIR standards and membership of the Multilateral Convention on Mutual Administrative Assistance in Tax Matters; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.

            Vietnam’s response and the path to delisting

            Vietnam’s Ministry of Foreign Affairs responded publicly within days of the listing, defending the country’s tax transparency record and stating that the government is implementing a national action plan to follow OECD recommendations and expand tax cooperation with partners including the EU. Vietnam expressed readiness to engage with European authorities to ensure more objective and comprehensive assessments, and to promote cooperation for shared development and prosperity. Practitioner commentary suggests a concrete roadmap is achievable: with legislative amendments (decrees and circulars on EOIR procedures), the establishment of a dedicated EOIR unit, publication of enforcement statistics, and active technical engagement with the EU Code of Conduct Group from now through September 2026, Vietnam could realistically target removal from Annex I at the next EU review cycle in October 2026, although this timeline is ambitious and delisting is by no means guaranteed. The key point for EU businesses is that, while the listing may be relatively short-lived if Vietnam acts decisively, companies should not delay compliance preparations in reliance on early delisting-a proportionate, risk-based response is more appropriate than a wholesale restructuring of Vietnam-linked supply chains.

            How different payment types are affected in practice

            Goods (imports) are often the most straightforward in substance terms because there is usually a clear chain of documents: purchase orders, shipping documents, customs import paperwork, delivery notes, inspection/acceptance records and matching invoices.

            The risk uplift for goods is typically not about whether the purchase is real, but whether the overall supply chain and pricing remain coherent under scrutiny-for example, whether margins and intercompany arrangements around the import flow make commercial sense and are consistently documented.

            Services (outsourcing, consulting, IT development, marketing, support) tend to attract more questions because “what was delivered” is harder to evidence than a shipped product.

            If your EU entity pays a Vietnamese provider for services, expect to need a well‑organised evidence pack: a clear scope of work, time records or milestones, deliverables (reports, code repositories, tickets), acceptance sign‑offs, and a pricing rationale that matches the level of skill and effort involved.

            Royalties and IP-related payments (software licences, trademarks, know‑how, technology access) are particularly sensitive because they combine valuation complexity with cross‑border tax characterisation questions.

            Expect pressure-testing of (i) who truly owns and controls the IP, (ii) the contract chain and sublicensing rights, (iii) how the royalty rate was set using benchmarking or comparable arrangements, and (iv) whether the payment is genuinely for IP rather than a disguised service fee.

            Intragroup charges (management fees, shared services, cost recharges) are commonly the first area where tax authorities and counterparties ask for “benefit” evidence and allocation logic.

            Where Vietnam sits inside a group value chain, be ready to show why a charge exists, how it was calculated, how the recipient benefited, plus consistent intercompany agreements and transfer pricing support.

            Financing and treasury flows (interest, guarantees, cash pooling, factoring, trade finance) trigger the most intensive technical review because they involve both tax outcomes and financial crime/compliance sensitivities.

            Even where the structure is legitimate, these flows are more likely to be escalated internally for enhanced review and may require more supporting documentation before execution.

            How European banks may respond (and what that looks like in practice)

            Banks in the EU operate under a risk‑based approach to financial crime and compliance, and they may apply de-risking decisions, meaning they can choose to restrict or exit relationships or transaction types they view as exceeding their risk appetite or being operationally too costly to monitor. EU supervisory frameworks acknowledge that de-risking exists and call for proportionate, evidence-based risk assessments rather than indiscriminate blanket exclusions, but in practice banks have significant discretion.

            For an EU company initiating a bank transfer to a Vietnamese counterparty, the following discretionary measures can arise in practice, even where the payment is entirely lawful and commercially routine.

            A bank can pause execution and request additional documents before releasing funds, seeking comfort on the purpose and legitimacy of the transaction under its internal controls.

            Typical requests include the underlying contract or statement of work, invoices, proof of delivery or performance, an explanation of business purpose, and information on the beneficiary’s beneficial ownership or corporate structure.

            A bank can route the payment through manual review queues rather than straight-through processing, particularly for first-time beneficiaries, unusually large amounts, or payments with vague narratives that do not clearly describe the purpose.

            This creates operational knock-ons: late supplier settlement, goods held pending payment confirmation, or service suspension where the vendor operates on strict payment triggers.

            A bank can impose internal conditions as part of its customer-specific risk controls-for example requiring richer payment details, stricter invoice descriptors, or pre-approval workflows for Vietnam-corridor payments.

            A bank can decline to process specific transactions or decide to exit certain corridors, client types, or business models entirely as a risk-management choice. German financial institutions are described as applying enhanced due diligence, requiring full transparency of transaction purpose and ownership for Vietnam-linked payments.

            Where a payment is declined, the practical solution is often to adjust the execution setup-alternative banking channel, revised documentation pack, or modified payment mechanics-while keeping the underlying commercial relationship intact.

            EU companies are advised to develop a “Banking Compliance Pack” for Vietnam-corridor payments: a pre-assembled set of documents (contract, invoice, proof of delivery/performance, business rationale memo, and beneficial ownership information) that can be submitted proactively or in response to bank queries within hours rather than days.

            Non-tax defensive measures and EU funding implications

            Beyond tax measures, being on the EU blacklist triggers non-tax consequences that affect Vietnam’s economic relationship with the EU more broadly. EU investment programmes cannot channel funding through entities located in Vietnam, because using such an entity contradicts the core legal purpose of these funds, which are designed to promote good governance, transparency, and the fight against illicit financial flows. Affected funds include the European Fund for Sustainable Development (EFSD/NDICI), which de-risks major investments in areas like energy and digital; the InvestEU programme (which replaced the former EFSI); and the External Lending Mandate (ELM), which provides EIB loans for major infrastructure outside the EU. In addition, the General Framework for STS securitisation imposes separate restrictions on the use of entities in blacklisted jurisdictions within securitisation structures. For Vietnamese entities and their EU partners working on donor-funded or ESG-driven projects, this can be a significant constraint, as subsidiaries and other businesses in Vietnam may be cut off from these sources of EU financing.

            DAC6 reporting and public country-by-country reporting

            Cross-border arrangements involving Vietnam are now subject to heightened DAC6 scrutiny. In particular, Hallmark C.1(b)(ii) may be triggered where a deductible cross-border payment is made by an EU-based associated enterprise to a tax resident in Vietnam, subject to Member State-specific implementation of the main benefit test and other conditions. Large multinationals (consolidated revenue of EUR 750 million or more in each of the last two fiscal years) must also prepare and publicly disclose a Public Country-by-Country Report. Under the EU Public CbCR Directive, Vietnam activities must be reported separately-not aggregated as “Rest of the World”-disclosing a list of all consolidated subsidiaries, description of activities, number of full-time equivalent employees, revenues (including related-party revenue), profit or loss before tax, income tax accrued and paid, and accumulated earnings. For FY 2025 and FY 2026, Vietnam information is already reportable separately by affected multinationals.

            Country notes (alphabetical)

            Belgium: Belgium applies non-deductibility of costs, CFC rules, and participation exemption limitations linked to both the EU list and certain domestic criteria. A critical Belgian-specific rule is the reporting obligation for payments made to entities in blacklisted jurisdictions where the aggregate of such payments exceeds EUR 100,000 in the taxable period; once this threshold is met, each such payment must be reported in the annual tax return, and any payment that is not reported, or that cannot be justified on specific grounds, is not deductible. Belgium follows a dynamic approach to the EU list, meaning EU list updates take effect automatically without a further domestic step. For Belgian payers, immediate practical priorities are: (i) identifying all Vietnam-linked payment streams above EUR 100,000, (ii) ensuring the reporting mechanism in the annual tax return is in place, and (iii) building the justification file for each reported payment.

            France: France applies all four defensive measures-non-deductibility of costs, CFC rules, withholding tax, and participation exemption limitation-but via a national decree-based list that refers to the EU list while also applying additional French domestic criteria. France follows a static approach, updating its domestic non-cooperative state list through an annual Decree in the Official Journal, with tax consequences applying from the first day of the third month following publication. The last French update took place in April 2025, and at the time of writing (May 2026) no subsequent decree incorporating Vietnam has been published. A further update is expected imminently and will likely include Vietnam. Once Vietnam appears on the French list, key measures include: a 75% withholding tax on interest, royalties, dividends and service fees (counterevidence possible); denial of the participation exemption (counterevidence possible for jurisdictions meeting certain criteria); denial of deductibility of interest, royalties and service fees (counterevidence possible); and a stricter CFC rule under which the burden of proof is reversed and foreign withholding taxes cannot be credited against French CFC income. French payers should monitor the next French decree closely and prepare counterevidence files now so they are ready the moment the decree is published.

            Germany: Germany applies all four defensive measures through the Tax Haven Defence Act (Steueroasen-Abwehrgesetz, StAbwG), linked to the EU list via a Tax Haven Defence Ordinance that is updated once per year, typically at year-end taking into account the October EU list update. The expected sequence for Vietnam is: December 2026-amendment to the Tax Haven Defence Ordinance to incorporate Vietnam; from 2027 (Year 1)-stricter CFC rules and extended withholding tax of 15% (plus a 5.5% solidarity surcharge) apply to income from financing relationships, insurance or reinsurance services, legal and advisory services, and trading of goods and services; from 2029 (Year 3)-denial of the participation exemption activates; from 2030 (Year 4)-denial of deductible business expenses activates. Importantly, Germany’s extended withholding tax can override double tax treaties. The multi-year ramp-up means that immediate German impacts are CFC scrutiny and withholding tax friction on specific payment types, while the broader expense deduction denial will only bite from 2030 onwards-giving German payers time to prepare, but making early documentation investment worthwhile.

            Italy: Italy uses the EU list for monitoring and deductibility purposes under Article 110 TUIR: costs connected with counterparties in Annex I jurisdictions are generally deductible up to “normal value,” while amounts above normal value require evidence of an effective economic interest, and all such costs must be separately indicated in the annual income tax return (Modello REDDITI). Italy’s framework is directly triggered by the EU list, meaning Vietnam’s Annex I status is effective for Italian purposes from the publication of the Council conclusions in the EU Official Journal, without any further domestic implementing step being required.

            For Italian payers, service costs, royalties, and intragroup charges to Vietnam are the most sensitive categories: robust documentation of deliverables, pricing and economic rationale is essential, and accounting teams need to ensure they can cleanly isolate Vietnam-linked costs in the year-end reporting workflow.

            Malta: Malta follows a dynamic approach to the EU list, meaning Vietnam’s Annex I status takes effect automatically in Malta’s tax framework. Malta applies a limitation of the participation exemption on dividend income derived from a participating holding in a body of persons that has been resident in a jurisdiction on the EU list for a minimum period of three months during the year immediately preceding the year of assessment, subject to a counter-evidence exception based on “people functions.” Malta does not apply non-deductibility, CFC, or withholding tax defensive measures against EU-listed jurisdictions as primary tools, so the main Malta-specific concern for holding and investment structures is participation exemption eligibility and substance evidence. For Malta-based groups, the practical response is to keep board materials, contracts, and commercial rationale tightly aligned, and to prepare for more intensive counterparty due diligence (beneficial ownership, substance, and tax residency) from EU customers and financial institutions.

            Netherlands: The Netherlands applies a 25.8% conditional withholding tax on interest, royalties, and (since 1 January 2024) dividends paid to related entities in EU-listed jurisdictions or low-tax jurisdictions, as well as CFC rules with counterevidence possible. The Netherlands follows a static approach: the list applicable for a tax year is based on the EU list as it stood at the end of the preceding year, using the October update as the reference. This means the Dutch 2027 Regulation will include Vietnam only if Vietnam remains on the EU list after the October 2026 review cycle. No withholding tax consequences arise for Dutch payers immediately in 2026 as a direct result of Vietnam’s February 2026 listing, but the October 2026 review date is critical: if Vietnam remains listed, Dutch conditional withholding tax obligations will activate from 1 January 2027. Dutch payers with intragroup dividend, interest, and royalty flows to Vietnam should use the current window to restructure documentation and pricing support and to assess whether existing double tax treaty protections remain effective in light of the conditional WHT mechanics.

            Spain: Spain does not mechanically mirror the EU list, but operates its own domestic list of non-cooperative jurisdictions, which is updated separately and can include or exclude jurisdictions differently from Annex I. Spain applies a static approach, with the list specified in law. The practical implication is that the Spanish domestic tax consequences of Vietnam’s listing depend on whether and when Spain updates its domestic list to include Vietnam, rather than arising automatically from the EU Council’s February 2026 decision. For Spain-based procurement and finance teams, do not assume a one-to-one mapping between EU-list status and Spanish domestic tax outcomes, but do treat Vietnam-linked transactions as higher-scrutiny items from an audit and counterparty due diligence perspective, and invest in cleaner contracting, invoice narratives, and performance evidence for services, royalties, and intragroup charges.

             

            Practical next steps for EU companies

            1. Map exposures: Identify and quantify all payment streams relating to Vietnamese entities, broken down by payment type (goods, services, royalties, intragroup charges, financing).
            2. Understand your Member State’s rules: Confirm which defensive measures apply in the relevant EU payer jurisdiction, when they take effect (immediately or staged), whether the jurisdiction follows the EU list dynamically or statically, what relief conditions exist, and what documentation is required.
            3. DAC6 readiness: Assess whether Vietnam-linked arrangements trigger DAC6 reporting obligations (particularly deductible cross-border payments between associated enterprises) and ensure reporting infrastructure is in place.
            4. Transfer pricing and substance: Validate intercompany services, royalties and financing arrangements by reassessing pricing, benefit tests and contractual terms; strengthen contemporaneous documentation before year-end.
            5. Public CbCR messaging: If within scope, assess public CbCR disclosure implications for Vietnam operations and align tax, legal, ESG and investor-relations communications accordingly.
            6. Vendor due diligence: Implement or strengthen due diligence on Vietnamese counterparties, including tax residence evidence, beneficial ownership documentation, and substance and economic activity confirmation.
            7. Banking compliance pack: Build a pre-assembled documentation pack for Vietnam-corridor payments (contract, invoice, proof of delivery/performance, business rationale, beneficial ownership information) to address bank queries within hours rather than days.
            8. Monitor the October 2026 review: Track Vietnam’s progress on EOIR reforms and the EU Code of Conduct Group’s October 2026 review cycle. If Vietnam is removed from Annex I in October 2026, Member States that follow a static approach (Germany, Netherlands) will not apply defensive measures to Vietnam in their 2027 rules; France, which also follows a static approach but applies additional domestic criteria, may nonetheless retain Vietnam on its own non-cooperative state list even after EU delisting. The October 2026 outcome is therefore commercially significant for medium-term planning.
            9. Embed internal governance: Install jurisdiction-risk gateways in approval workflows for new entities, contracts, loans, and IP arrangements involving Vietnam, to ensure proper sign-off and documentation from inception.

            Under French Law, franchisors and distributors are subject to two kinds of pre-contractual information obligations: each party must spontaneously inform their future partner of any information they know is decisive to their consent. In addition, for certain contracts – i.e a franchise agreement – there is a duty to disclose a limited amount of information in a document. These pre-contractual obligations are mandatory rules of public policy. Thus, these two obligations apply simultaneously to the franchisor, distributor or dealer when negotiating a contract with a partner.

            Takeaways

            • The information required by the DIP must be fully completed and updated ;
            • The information not required by the DIP but provided by the franchisor must be carefully selected and sincere;
            • Franchisee must be given the opportunity to request additional information from the franchisor;
            • Franchisee’s experience in the economic sector enables the franchisor to considerably limit its exposure to the risk of contract cancellation due to a defect in the franchisee’s consent;
            • Franchisor must keep the proof of the actual disclosure of pre-contractual information (whether mandatory or not).
            • The general information obligation under common law (Article 1112-1 of the French Civil Code) may apply concurrently with the special disclosure obligation provided for under Article L. 330-3 of the French Commercial Code.

            General duty of disclosure for all contractors

            What is the scope of this pre-contractual information?

            This obligation is imposed on all counterparties, for any kind of contract. Indeed, article 1112-1 of the Civil Code states that:

            (§. 1) The party who knows information of decisive importance for the consent of the other party must inform the other party if the latter legitimately ignores this information or trusts its counterparty.

            (§. 3) Of decisive importance is the information that is directly and necessarily related to the content of the contract or the quality of the parties. »

            This obligation applies to all contracting parties for any type of contract.

            French courts have ruled that this general information obligation may apply concurrently with the special disclosure obligation under Article L. 330-3 of the French Commercial Code (see below), answering the question in the affirmative (Paris Court of Appeal, 27 March 2024, no. 22/12665). The scope of the latter has however, been defined by the French Supreme Court (« Cour de cassation ») : only information bearing a direct and necessary link with the subject matter of the contract or the qualities of the parties is subject to the disclosure obligation (Cass. com., 14 May 2025, no. 23-17.948).

            Who bears the burden of proof?

            The burden of proof rests on the person who claims that the information was due to him. He must then prove (i) that the other party owed him the information but (ii) did not provide it (Article 1112-1 (§. 4) of the Civil Code)

            Special duty of disclosure for franchise and distribution agreements

            Which contracts are subject to this special rule?

            French law requires (art. L.330-3 French Commercial Code) the provision of a pre-contractual information document (in French “DIP”) and the draft contract, by any person:

            • which grants another person the right to use a trade mark, trade name or sign,
            • while requiring an exclusive or quasi-exclusive commitment for the exercise of its activity (e.g. exclusive purchase obligation). The quasi-exclusive nature of the commitment is assessed on a case-by-case basis by French courts, independently of the 80% purchase threshold provided for under EU Regulation 2022/720, which is treated merely as an indicative reference.

            Concretely, DIP must be provided, for example, to the franchisee, distributor, dealer or licensee of a brand, by its franchisor, supplier or licensor as soon as the two above conditions are met. French courts have moreover recently had occasion to confirm that the scope of the DIP obligation is not limited to franchise agreements but extends, in particular, to dealership agreements, provided the above-mentioned conditions are met (Paris Court of Appeal, 22 May 2024, no. 22/08672).

            When the DIP must be provided?

            DIP and draft contract must be provided at least 20 days before signing the contract, and, where applicable, before the payment of the sum required to be paid prior to the signature of the contract (for a reservation).

            What information must be disclosed in the DIP?

            Article R. 330-1 of the French Commercial Code requires that DIP mentions the following information (non-detailed list) concerning:

            • Franchisor (identity and experience of the managers, career path, etc.);
            • Franchisor’s business (in particular creation date, head office, bank accounts, history of the development of the business, annual accounts, etc.);
            • Operating network (members list with indication of signing date of contracts, establishments list offering the same products/services in the area of the planned activity, number of members having ceased to be part of the network during the year preceding the issue of the DIP with indication of the reasons for leaving, etc.);
            • Trademark licensed (date of registration, ownership and use);
            • General state of the market (about products or services covered by the contract) and local state of the market (about the planned area) and information relating to factors of competition and development perspective. With respect to the local market, the French Supreme Court (« Cour de cassation ») has held that the franchisor is not required to conduct a market study, but that if one is provided, it must be accurate and verifiable (Cass. com., 18 Oct. 2023, no. 22-19.329).;
            • Essential element of the draft contract and at least: its duration, contract renewal conditions, termination and assignment conditions and scope of exclusivities;
            • Financial obligations weighing in on contracting party: nature and amount of the expenses and investments that will have to be incurred before starting operations (up-front entry fee, installation costs, etc.).

            Beyond the exhaustiveness of the information required under the aforementioned provision, the DIP is subject to a qualitative standard. All information provided — including information provided spontaneously — must be accurate and truthful to ensure that the prospective network member’s consent is fully informed and free from any defect.

            How to prove the disclosure of information?

            The burden of proof for the delivery of the DIP rests on the debtor of this obligation: the franchisor (Cass. Com., 7 July 2004, n°02-15.950). The ideal for the franchisor is to have the franchisee sign and date his DIP on the day it is delivered and to keep the proof thereof.

            The clause of contract indicating that the franchisee acknowledges having received a complete DIP does not provide proof of the delivery of a complete DIP (Cass. com, 10 January 2018, n° 15-25.287).

            The franchisor is subject to a duty to update the DIP until the contract is signed

            In a ruling dated 26 June 2024 (no. 23-14.085 PB), the French Supreme Court held that formal compliance of the DIP at the time of its delivery is not sufficient to exonerate the franchisor from all pre-contractual liability. This position was confirmed by a subsequent ruling of 4 December 2024 (no. 23-16.684).

            These two decisions appear to establish a duty of ongoing updates incumbent upon the network head throughout the entire period between the delivery of the DIP and the execution of the contract. Where significant events occur during that interval — insolvency proceedings affecting network members, major litigation, or structural changes to the network — the network head is required to proactively inform the prospective member. The court then examines whether the failure to disclose such information was liable to distort the candidate’s assessment of the network and, consequently, to vitiate his consent (Cass. com., 26 June 2024, op. cit.).

            A franchisor may therefore not shelter behind the initial regularity of the DIP to discharge its disclosure duty where the network’s situation has materially changed prior to the signing of the contract.

            Sanction for breach of pre-contractual information duties

            Criminal sanction

            Failing to comply with the obligations relating to the DIP, franchisor or supplier can be sentenced to a criminal fine of up to 1,500 euros and up to 3,000 euros in the event of a repeat offence, the fine being multiplied by five for legal entities (article R.330-2 French commercial Code).

            Cancellation of the contract for deceit

            The contract may be declared null and void in case of breach of either article 1112-1 of the French Code civil or article L. 330-3 of the French Code de commerce. In both cases, failure to comply with the obligation to provide information is sanctioned if the applicant demonstrates that his or her consent has been vitiated by error, deceit or violence. In this respect, courts conduct a concrete, case-by-case assessment, taking into account in particular the professional experience and personal due diligence of the distributor: a sophisticated candidate will face greater difficulty in establishing deceit, and his experience in the relevant sector may be sufficient to exonerate the franchisor (Paris Court of Appeal, div. 5 – ch. 11, 26 Apr. 2024, no. 21/13205), even where the information provided was incomplete or inaccurate (Paris Court of Appeal, 20 Jan. 2021, no. 19/03382).

            The path is therefore narrow for the franchisee: he cannot invoke error concerning profitability when it is he who draws up his plan, and even when this plan is drawn up by the franchisor or based on information drawn up and transmitted by the franchisor, the experience of the franchisee who knew the local market may exonerate the franchisor.

            Regarding deceit, Courts strictly assess its two conditions which are:

            • (a material element) the existence of a lie or deceptive reticence (article 1137 French Civil Code), and
            • (an intentional element) the intention to deceive his counterparty (article 1130 French Civil Code).

            Where applicable, the parties must return to the state they were in before the contract.

            Damages

            Although the claims for contract cancellation are subject to very strict conditions, it remains that franchisees/distributors may alternatively obtain damages on the basis of tort liability for non-compliance with the pre-contractual information obligation, subject to proof of fault (incomplete or incorrect information), damage (loss of opportunity of not contracting or contracting on more advantageous terms) and the causal link between the two.

            From Reporting to Governance and Risk Allocation

            Environmental, Social and Governance (ESG) considerations are playing an increasingly influential role in how businesses operate, invest, and manage risk, especially within the European Union, where corporate sustainability and responsibility regulation have been on the agenda in recent years.

            With the adoption of the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD), many companies anticipated a significant shift in compliance. Since then, the EU has introduced simplification measures to streamline reporting and due diligence obligations, reduce the administrative burden, and improve proportionality, particularly for small and medium-sized enterprises (SMEs), while maintaining the core sustainability objectives.

            While opinions may differ regarding the evolution of environmental, social, and governance (ESG) in EU regulation and the subsequent postponements of reporting obligations, regulatory developments appear to have, in practice, supported a shift in perspective. Sustainability is no longer viewed solely as a reporting requirement, but increasingly as a matter of governance, strategy, and risk allocation. This development is welcome, as the regulatory framework’s underlying objective is to advance the green transition, which in turn requires a change in how companies integrate sustainability into their decision-making and operations.

            This focus on sustainability influences businesses of all sizes, including SMEs. Even companies not directly subject to the CSRD or CSDDD anticipate that ESG requirements will be passed down through the supply chain. Many non-reporting SMEs are already embedding sustainability practices, and this trend is likely to continue. In other words, sustainability policies are already affecting companies well before any formal reporting obligations kick in.

            Environmental, Social, and Governance in Contract Architecture

            One of the key means of implementing environmental, social, and governance obligations and objectives in day-to-day business operations is through commercial contracts and the requirements and commitments embedded in them.

            Even where a company itself is not directly subject to extensive reporting or due diligence obligations, corporate sustainability and responsibility expectations flow through the market via contractual relationships. Larger undertakings within the scope of CSRD and, in due course, the CSDDD require contractual assurances, information rights, and cooperation from their business partners, including SMEs operating within their supply chains. As a result, corporate sustainability and responsibility become a question of contractual architecture. Companies must consider not only price mechanisms, liability caps and termination triggers, but also how environmental, social and governance risks and obligations are addressed and allocated between the parties through legally enforceable contractual terms.

            Translating Policies into Binding Obligations

            A typical starting point is the incorporation of a code of conduct or sustainability policies into commercial contracts, often by reference and through an express obligation on the contracting party to comply with them. From a legal standpoint, this raises important drafting questions. Many codes are drafted as high-level public statements. When such policies are converted into contractual commitments, their wording, scope, and hierarchy relative to the main agreement require careful consideration. The obligations must be sufficiently clear to define the parties’ expectations, coherent with other contractual provisions, and proportionate to the commercial relationship. The obligations must also be capable of practical implementation and effective monitoring in the context of the agreement.

            In practical terms, this may mean requiring the supplier to comply with specific labour standards, maintain documented environmental management procedures, report on emissions data, ensure traceability of key raw materials, or allow reasonable access for audits. Clearly defining what is expected, how compliance is demonstrated, and what consequences follow from non-compliance is essential for the clause to function effectively. Otherwise, clauses that appear comprehensive in theory and ambitious in scope may offer limited enforceability in practice, and their impact may remain marginal if compliance cannot be effectively monitored and verified. If policies are not properly translated into binding and operational obligations, the company risks a mismatch between what it promises publicly and what is actually required under its contracts. This may undermine consistency, weaken risk management, and expose the company to reputational and governance risks if its own stated principles cannot be enforced within its supply or distribution chain.

            As part of this process, companies must also consider the protection of trade secrets and confidential information. For example, broad audit or data-reporting obligations may raise concerns about sensitive business information. Contractual terms should balance transparency with the need to protect legitimately proprietary data. Clauses such as confidentiality agreements or carve-outs for trade secrets can be used to ensure that sharing ESG-related information does not compromise confidential business information or competitive advantages.

            Environmental, Social and Governance Clauses Across Different Contract Types

            Besides codes of conduct and sustainability policies, environmental, social and governance-related clauses increasingly take more tailored and transaction-specific forms. In shareholder agreements, sustainability objectives may be reflected in governance structures or even linked to financial outcomes, for example by aligning dividend policies or incentive mechanisms with agreed climate targets. In employment contracts, obligations may extend beyond general compliance and include participation in corporate sustainability training programmes or adherence to internal sustainability guidelines as part of performance expectations.

            In supply and manufacturing agreements, environmental, social and governance provisions may address traceability of raw materials, emissions reporting, waste management, energy efficiency standards or the right to replace a supplier if its environmental practices materially conflict with the contracting party’s sustainability commitments. Such contractual mechanisms increasingly affect SMEs operating as suppliers, as ESG expectations pass through the supply chain.

            Construction contracts often include detailed requirements regarding material selection, lifecycle impacts, carbon footprint calculations and recycling or waste reduction procedures. For example, in Finland, legislation imposes low-carbon and energy efficiency requirements for new buildings, and a party undertaking a construction project is subject to mandatory reporting obligations relating to construction and demolition waste. These statutory requirements are typically reflected and implemented in the relevant project and construction contracts.

            Across these different contract types, the practical significance is consistent. Environmental, social and governance considerations move from the level of general policy into legally enforceable obligations tailored to each specific legal relationship. Contracts function as a mechanism for allocating responsibility, managing compliance risk and aligning commercial incentives with sustainability objectives.

            Proportionate Monitoring and Audit Rights

            In the contractual implementation and monitoring of environmental, social and governance obligations, audit and information rights play a central role. They are closely linked to effective oversight and form an integral part of a coherent contractual framework. In practice, companies typically seek access to relevant data from their business partners and, where appropriate, establish inspection or audit rights to enable meaningful monitoring and verification, whether conducted directly by the company or, commonly, by an independent expert appointed for that purpose.

            However, such arrangements must remain balanced. Overly burdensome provisions may needlessly disrupt day-to-day operations and reduce the willingness to cooperate, particularly for SMEs with limited administrative capacity. By contrast, well-designed mechanisms that balance transparency with confidentiality and operational feasibility are more defensible and more likely to function effectively in practice.

            Contractual Remedies

            As a general principle, the consequences of a breach are determined by the terms agreed between the parties. In practice, the parties will typically first seek to resolve the matter through discussion and good faith negotiations, allowing the non-compliant party an opportunity to clarify the situation and implement corrective actions within a reasonable timeframe. If negotiations do not lead to a resolution, it may be appropriate to proceed to stronger measures, such as contractual penalties, indemnification obligations, price adjustments, temporary suspension rights or other agreed sanctions, applied in light of the nature and severity of the breach.

            The contract should clearly define what constitutes a breach, how it is assessed and what remedies are available in each scenario. Clear and proportionate step-by-step remedy structures enhance legal certainty, reduce the risk of disputes and ensure that material or repeated breaches may trigger more significant consequences, including termination where justified.

            Strategic and Voluntary Environmental, Social and Governance Commitments

            In the current EU landscape, implementing ESG considerations in commercial contracts is no longer simply a matter of reacting to directives. It is a broader exercise in risk management and corporate governance. Even as the implementation details of the directives may continue to evolve, market expectations, financing conditions and reputational considerations remain key drivers of sustainability integration.

            In addition, some companies choose to position themselves as frontrunners in sustainability for strategic and reputational reasons. They may therefore incorporate voluntary environmental, social and governance mechanisms and requirements into their contracts that go beyond, or are not directly derived from, binding directives. By doing so, they signal to investors, customers and other stakeholders that sustainability is treated as a core business priority rather than merely a compliance obligation.

            At the same time, it is important to recognise the practical limits of such commitments. Ambitious sustainability requirements may be more challenging for SMEs with limited financial and administrative resources. Meeting extensive reporting, certification or traceability standards can require investments in systems, personnel and external expertise. If contractual expectations are not calibrated to the size and capacity of the counterparty, they may limit the ability of SMEs to participate in certain supply chains. A balanced and proportionate approach helps ensure that sustainability objectives remain achievable and commercially workable across the contractual chain.

            Conclusion

            For legal practitioners, the central task is not to increase the number of environmental, social and governance clauses as such, but to ensure their quality, coherence and practical relevance. The objective is to design contractual mechanisms that are proportionate, enforceable and aligned with the company’s actual risk profile, industry context and sustainability priorities. Commercial contracts remain one of the most concrete tools for translating sustainability strategy into operational practice. Moreover, every contract lawyer should understand and apply key sustainability principles in their work, ensuring that ESG commitments become integral to legal advice and contract drafting.

            The Strait of Hormuz is likely the most strategically important point for the global oil trade. In fact, approximately 20% of the world’s oil and gas passes through this narrow passage between the Gulf of Oman and the Persian Gulf every day.

            Following the outbreak of war in the region, the impact on energy markets was almost immediate: oil prices quickly rose above $100 per barrel, and it is unclear how high they may climb in the coming weeks and months. As a result, transportation, production, and procurement costs are rising across industrial supply chains in many sectors.

            For many companies engaged in international trade, this phenomenon creates a very real problem. Contracts signed months (or years) earlier—perhaps at a fixed price—must be fulfilled in a completely different economic context.

            A manufacturer that sells goods for delivery in six or twelve months may find itself producing and shipping at much higher energy costs, while the price agreed upon with the customer remains unchanged.

            This is a situation that recurs cyclically, for various reasons: from the COVID-19 pandemic to the subsequent raw materials crisis, and on to current geopolitical tensions.

            When the increase in costs is so sudden and significant, a question inevitably arises: must the contract still be performed under the original terms, or is it possible to suspend or renegotiate the agreement to adapt it to the new circumstances?

            The answer depends on several factors: first and foremost, on what the parties have (or have not) provided for in the contract, but also on the law applicable to the relationship and on the interpretation that judges or arbitrators may give to the rules in the event of a dispute.

            Force Majeure and Hardship: Two Different Concepts

            When extraordinary events occur—such as a war, an energy crisis, or the disruption of a trade route—many operators immediately invoke force majeure. However, in most cases, these situations fall instead under the category of hardship.

            It is therefore essential to distinguish between these two situations.

            When an Event Constitutes Force Majeure

            Force majeure applies to cases where an extraordinary and unforeseeable event makes it impossible to perform the contract.

            The characteristics of the grounds for exemption from liability depend on the law applicable to the commercial relationship, but generally require:

            • unpredictability of the event;
            • the event being beyond the affected party’s control;
            • the impossibility of avoiding or overcoming the event through reasonable efforts.

            Typical examples include:

            • orders from authorities requiring the suspension of production
            • embargoes or export bans
            • logistical disruptions caused by war

            In these situations, performance is not merely more costly: it becomes objectively impossible. The consequence is that the party unable to perform is generally exempt from liability for the duration of the event.

            Hardship

            The situation is different when performance of the contract remains possible but becomes economically much more burdensome.

            The concept of hardship is generally based on four prerequisites:

            1. an event occurring after the conclusion of the contract
            2. unpredictability and extraordinary nature of the event
            3. a substantial alteration of the economic balance of the contract
            4. excessive burden of performance, but not impossibility

            A sharp increase in the price of oil, gas, or other raw materials often falls into this category.

            Goods can be produced and delivered, but doing so may entail costs far higher than those anticipated when the contract was signed.

            The ripple effect along the international supply chain

            In global industrial supply chains, the same goods are often the subject of a series of consecutive contracts.

            The manufacturer sells to a trader, who sells to a processing company, which resells to an importer in another country, who in turn distributes the product to the end market.

            When a hardship event occurs—such as a sharp rise in energy prices—the effect tends to ripple throughout the entire supply chain.

            The first party affected by the cost increase will try to pass the increase on to its contractual counterpart, who, in turn, will find themselves in the same situation with the next link in the chain.

            The risk is clear: one of the operators in the middle of the chain may face increased upstream costs without being able to pass them on downstream.

            This is one of the most common problems in international supply chains.

            What happens if there is no clause regarding price fluctuations

            In commercial practice, it often happens that parties operate on the basis of orders and order confirmations without a formal written contract, or that a contract exists but contains no provisions regarding price fluctuations or hardship.

            In such cases, when costs increase sharply, it is necessary to determine which law applies to individual sales contracts across the supply chain.

            This can lead to very different situations:

            • one law may allow for price revision or termination of the contract
            • another law aplicable to a second contract may not provide for equivalent remedies
            • a third contract may contain much more restrictive contractual clauses

            The practical result is that an operator in the middle of the chain may face a price increase from their supplier without being able to pass it on to the customer.

            A Common Legal Framework: The Vienna Convention on the International Sale of Goods (CISG)

            Fortunately, many international sales contracts are governed by the 1980 Vienna Convention on the International Sale of Goods (CISG).

            The convention has been ratified by 97 countries, including Italy and most major trading partners, such as the U.S., Canada, China, Germany, France, Spain, etc.

            The central provision is Article 79, according to which a party is not liable for non-performance if it proves that the non-performance is due to an impediment:

            • beyond its control
            • unforeseeable at the time of the conclusion of the contract
            • unavoidable or insurmountable

            Traditionally, this provision has been applied to cases of force majeure.

            In recent years, there has been debate over whether it can also be applied to cases of hardship, but international case law tends to be very cautious.

            International case law on Hardship

            Court decisions reflect a rather strict approach.

            In some cases, even very significant increases in raw material costs have not been considered sufficient to modify or suspend the contract.

            The reasoning is simple: those who operate professionally in international trade must take into account a certain degree of market volatility.

            Only when the increase in costs exceeds an exceptional and unforeseeable level such as to radically alter the balance of the contract can hardship be invoked.

            One of the most frequently cited cases is the Belgian Supreme Court’s decision in the Scafom case, which recognized the right to renegotiate the contract following a 70% increase in the price of steel.

            However, such cases are relatively rare.

            Generic clauses that serve no purpose

            Many contracts contain hardship clauses copied from standard templates (boilerplate).

            The problem is that these clauses often:

            • list the effects of hardship
            • but do not define when hardship actually occurs

            The result is that, when prices rise, the parties may have very different opinions on what constitutes an “exceptional” increase and whether the event in question was “unforeseeable” or not.

            The clause, therefore, does not resolve the issue, but defers it to discussion between the parties and, in the event of a failure to reach an agreement, to the courts or arbitrators.

            What criteria can define a hardship situation

            To make the clause truly effective, it is useful to establish objective parameters.

            Among the most commonly used in international contracts:

            • an increase or decrease in the price of a raw material beyond a certain threshold (±20% or ±30%)
            • an increase in transportation or logistics costs within certain limits;
            • significant fluctuations in the exchange rate beyond a specified range;
            • the introduction of tariffs or trade restrictions

            These parameters, linked to tolerance ranges, allow the parties to quickly and unambiguously identify a hardship event.

            Remedies in the Event of Hardship

            An effective clause should also address how to handle the situation.

            The most common solutions are:

            • renegotiation of the contract in good faith
            • apply an automatic price adjustment
            • appointment of an independent third-party expert to determine the new price
            • temporary suspension of the contract
            • right of withdrawal if no agreement is reached

            These tools allow the parties to manage the crisis without resorting to litigation.

            Audit of existing contracts: what to do now

            At this point, the practical question becomes: how should we manage the issue in existing business relationships?

            The first step is to conduct an audit of existing contracts with suppliers and customers.

            1. Introduce comprehensive contracts in new relationships

            If the relationships are governed solely by purchase orders and order confirmations, it is advisable to take this opportunity to draft comprehensive international sales contracts that include:

            • a hardship clause
            • warranty provisions
            • remedies for breach
            • limitations of liability

            2. Update existing contracts

            If the relationship is already governed by a contract, you should check whether a hardship clause exists.

            If not, it may be useful to propose to the other party:

            • a new contract, or
            • a contract addendum dedicated to managing price fluctuations.

            This helps prevent future conflicts and provides both parties with an effective tool to manage potential price shocks along the supply chain.

            Conclusion

            Commodity and energy crises demonstrate how exposed international contracts are to sudden changes in economic conditions. When a contract does not clearly address hardship management, the risk does not disappear; it simply shifts along the supply chain until it settles on the weakest link.

            For this reason, companies operating within international supply chains should view the hardship clause as a strategic tool for managing contractual risk. A well-drafted contract does not eliminate market volatility, but it allows the parties to address it with clear rules, reducing uncertainty and preventing disputes.

            Executive Summary

            The African Continental Free Trade Area (AfCFTA) remains one of the most ambitious integration projects in the world. Yet, several years into its operational phase, it has not (yet) delivered the structural shift many expected. A recent analysis underscores the gap between political momentum and economic reality: implementation remains uneven, the agreement is still used by only a portion of participating states, and non-tariff barriers and infrastructure deficits continue to dominate the cost of doing business across borders.  For Egypt, the opportunity is still real — but it depends less on treaty headlines and more on enabling conditions: trade logistics, customs efficiency, regulatory convergence, and competitive industrial capacity. 

            Looking Back: The Promise of a Single African Market

            When the AfCFTA was launched, expectations were understandably high. A continent-wide trade framework was supposed to reduce tariffs, facilitate trade in goods and services, and strengthen regional value chains — with the broader goal of moving African economies up the value ladder.

            In my 2022 article, I asked whether AfCFTA could become a game changer for Egypt, given Egypt’s industrial base, strategic geography, and the potential to diversify export markets beyond traditional partners. (For background, see the earlier article here”).

            The Reality Check: Intra-African Trade Remains Structurally Weak

            Several years later, the interim assessment is sobering. As the Frankfurter Allgemeine Zeitung (FAZ) recently put it, AfCFTA is not a “game changer” yet, and only about half of member states currently meet the practical prerequisites to trade under the agreement.

            A deeper reason is structural: no other world region trades so little with itself, and while statistics may undercount informal cross-border flows (especially in food), the overall picture remains unchanged.

            Trade integration cannot deliver transformative outcomes if production, logistics, and institutions do not support scale.

            Implementation Has Been Slow — and Often Symbolic

            Operationalisation did not start with full-scale liberalisation. Instead, the AfCFTA began with a pilot approach: the Guided Trade Initiative (GTI) launched in October 2022, initially with eight states, later joined by additional countries, including Nigeria and South Africa by spring 2025.

            The GTI created valuable learning effects, but it also underlined a key point: early progress was often presented through symbolic deals, while product coverage and volumes remained limited. FAZ highlights that only selected goods could be traded duty-free and that key sectors remained constrained for a long time due to missing or unresolved technical rules.

            A pilot, however, cannot substitute for full operational certainty — the kind businesses need to restructure supply chains and invest.

            Tariffs Are Not the Main Barrier — Trade Costs Are

            AfCFTA is frequently discussed in terms of tariff liberalisation. Yet, evidence suggests that the largest gains do not come from tariffs but from reducing non-tariff barriers and improving trade infrastructure.

            FAZ points to a central reality: tariffs tend to add around 20–30% to intra-African trade costs, whereas non-tariff costs can be far higher — driven by bureaucracy, lack of harmonised standards, inefficient border processes, and transport barriers.

            This is the crux: even with reduced tariffs, trade will not expand meaningfully if goods still cannot move cheaply, quickly, and predictably.

            Integration Complexity and Distributional Politics

            Africa’s integration landscape is shaped by multiple overlapping regional economic communities and trade regimes. This creates legal and administrative complexity — often described as an integration “spaghetti bowl.” FAZ notes the challenge of coordination and the continued fragmentation of rules.

            There is also a political economy dimension. Intra-African trade is heavily influenced by a small number of larger economies — and the distribution of benefits matters. FAZ highlights the dominance of major players (notably South Africa) and the concern that tariff liberalisation alone may entrench existing industrial advantages.

            Where governments expect asymmetric outcomes, resistance often takes the form of delay, narrow implementation, or persistent non-tariff barriers.

            What This Means for Egypt: The Opportunity Is Real — But Conditional

            Egypt’s strategic case for AfCFTA participation remains strong: industrial potential, geographic location, and the opportunity to access and shape growing markets. But the experience so far suggests that the treaty text alone does not generate trade flows.

            For Egypt’s private sector, the decisive factors are practical:

            • predictable and efficient customs clearance and border procedures,
            • logistics corridors and port efficiency,
            • regulatory convergence (standards, certification, compliance),
            • stable access to trade finance and payments,
            • competitive energy and production conditions for manufacturing and processing.

            AfCFTA can support these developments — but it cannot replace them.

            The “Game Changer” Pathway: What Must Happen Next

            FAZ concludes that AfCFTA will only become truly impactful if it is paired with the fundamentals: major infrastructure investment, stronger production and processing capacity, and a credible industrial policy.

            At the same time, Africa faces a classic chicken-and-egg problem: without development there is limited investment appeal; without investment there is limited development.

            For Egypt and its partners, a pragmatic strategy would be to:

            1. treat AfCFTA as a platform for real trade-cost reduction, not only tariff debates;
            2. focus on a limited number of scalable corridors and sectors where regional value chains can realistically grow;
            3. strengthen implementation capacity so that preferences become usable for firms — especially SMEs;
            4. enhance legal certainty and dispute resolution reliability for cross-border commerce.

            Conclusion

            AfCFTA remains a landmark achievement in terms of political commitment. But as of today, it has not yet been the “game changer” many hoped for.

            For Egypt, the key question is no longer whether AfCFTA is visionary — it is. The question is whether governments and businesses can translate it into lower real trade costs, higher competitiveness, and bankable cross-border transactions. If those enabling conditions improve, AfCFTA’s promise can still become commercial reality.

            After “Liberation Day,” many foreign companies offered discounts to American importers to help them offset the tariffs. A few months later, the US Supreme Court declared the „reciprocal“ tariffs unlawful, but on the same day, President Trump announced new tariffs. In this article, we provide a practical overview of how to handle various scenarios, shifting from a reactive, unstructured approach to deliberate management of price volatility and trade flows caused by the introduction, adjustment, and removal of tariffs.

            Tariff Sharing agreements

            For a long time, the question has been straightforward: who absorbs the extra customs cost? The exporter? The importer? Both? The question remains important, but today it is incomplete.

            The new scenario, in light of the recent ruling by the US Court of Justice on March 20, 2026, is: what happens if that duty is then canceled and refunded? If the cost was shared between the parties, the benefit of the refund must follow a consistent logic. In the absence of a clear agreement on this point, however, there is a risk of economic misalignment that could compromise the commercial relationship.

            Let’s imagine an Italian winery that sells its products to a US importer. Following the introduction of reciprocal duties, the parties have decided that the exporter will grant an extraordinary discount of 7.5%, explicitly motivated by the need to share the impact of the duty. The commercial relationship continues, volumes remain stable, and the importer avoids passing on the entire increase to the end customer.

            As a result of the Supreme Court ruling (or, in the future, another ruling or administrative decision), the importer obtains a refund of the duties paid during that period.

            If no formal agreements have been made on this point and the documentation refers generically to a „commercial discount“ and says nothing about reimbursement, the situation afterward may be difficult to reconstruct and, above all, could lead to commercial tension. As a result, a positive development (the cancellation of the duty and the right to reimbursement) becomes a problematic factor that jeopardizes the relationship.

            Is the exporter entitled to a refund of the discounts granted to mitigate the duties?

            In the absence of a different agreement between the parties, the right to reimbursement belongs to the party who paid the duty, i.e., in most cases, the importer. Therefore, there is a risk that the importer will enjoy a double benefit (the discount and the duty refund), while the exporter will get nothing.

            For this reason, it is essential that the parties do not limit themselves to negotiating prices and discounts, but also establish the consequences of the adoption, modification, or revocation of duties on the contract, including any refunds.

            To achieve this, the first step is to accurately classify and document the discounts granted. If only a „commercial discount“ appears in emails, commercial orders, credit notes, and invoices, it will be harder to later argue that this discount was actually an extraordinary, temporary contribution related to the duty. Conversely, if the documentation and contract specify that it is a tariff sharing or tariff mitigation measure, identifying the amounts to be refunded after the fact becomes much simpler.

            The goal is to create a clear view of the trend in discounts and payments so that, if needed, financial flows can be adjusted to align with the original terms of the agreement: if the exporter has helped cover a cost that then, in whole or in part, does not end up materializing, they will be eligible for a refund of the contribution paid.

            The contract will therefore include, in addition to the Tariff Sharing clause, a Tariff Reimbursement Allocation clause, which states that if the importer receives a refund, credit, or any other economic benefit related to the duty for which the exporter has granted a discount, the importer must return the corresponding portion of the benefit to the exporter in full. or proportionally, depending on how the parties intend to distribute risk and incentive.

            Importer’s responsibility to seek reimbursement

            It is unclear whether, in the case of US reciprocal duties, importers can simply file an administrative claim to get a refund or if legal action will be required. The latter seems more probable.

            Generally, obtaining a duty refund involves action, deadlines, documentation, and coordination with brokers and customs consultants. In most cases, the entity controlling the process is the importer (or someone acting on their behalf).

            This raises a sensitive but very real issue: if the importer knows that they will have to invest time and money to obtain a refund, only to then have to share the benefit with the exporter, their incentive to take action may be reduced. To prevent this inertia  the contract should contain an express obligation to take action, set out as a duty of best efforts or commercially reasonable efforts.

            For example, the contract should specify that the importer must inquire about the conditions and time limits of the process, keep relevant documentation, regularly inform the exporter about the progress of the initiatives, and not unilaterally waive or reduce the claim if it affects the exporter’s economic rights.

            Preventive Agreements on Litigation and Cost Allocation

            When reimbursement involves a lawsuit or structured legal action, the obstacles are organizational and financial: who decides if and when to proceed, who selects the lawyers, who pays the costs upfront, how the net recovery is divided, and who has the final say on a settlement. This generally applies to all contracts, not just this case: dispute resolution methods must be addressed and agreed upon before the problem arises.

            Otherwise, the dispute resolution process risks becoming a secondary improvised negotiation at the worst time — when the parties are already under pressure from margins, cash flow, and regulatory uncertainty. As a result, it becomes much harder to reach an agreement.

            How to handle new tariffs and their potential cancellation

            To safeguard against uncertainty, the agreement should be organized into two stages.

            • The first stage regulates the immediate impact of the change in scenario, for example, the introduction of a new tariff or its increase (renegotiation, cost sharing, automatic adjustment : I discussed this in this article).
            • The second stage manages the possible „rollback“ (right to reimbursement, process, allocation criteria).

            This approach has a clear benefit: it does not force the parties to discuss every time the tariff regime changes or a decision to cancel tariffs is made. Instead of reacting to market changes, a tool is adopted to manage potential scenarios, which is much more resilient commercially and easier to oversee, as the rules have already been agreed upon.

            This allows the impact of duties to be regulated not as an extraordinary variable, to be agreed upon on a one-time basis, but as a structural, adaptable phenomenon that could last a long time.

            This is why it is crucial to know how to draft contracts that cover both the current situation and potential changes, including any refunds.

            Conclusion: Three practical steps for companies exporting to the US

            The first is to agree on the consequences for the contract of the introduction of a new duty, increasing it, or revoking it (renegotiation, cost sharing, automatic price adjustment, right to share the refund).

            The second is to clearly document any discount granted to offset a duty. If it remains a generic „commercial discount,“ the right to a refund if reimbursement occurs will be much harder to enforce.

            The third step is to determine what happens if the duty is canceled or revoked: the importer’s responsibility to take action to get a refund, manage the administrative process or litigation, how to divide costs, who oversees the activities of consultants and lawyers, and how the recovered funds will be allocated.

            How do you approach negotiating a trade agreement with China?

            Based on my experience, let’s examine the issues to be addressed and the main questions to ask, taking the negotiation of a trade distribution agreement as a practical example.

            Let’s start with the first issue that is important to clarify.

            Nice Business Card – But Who Is This Guy?

            Business cards, websites, printed or digital brochures, presentations, and any other materials shared in English have no official value in China.

            The company name of the counterparty and the first and last names of people representing it or acting on its behalf, written in English, are only fictitious names.

            To be certain of the company’s data and the identity of the persons, it is necessary to ask for the information in Chinese, with particular reference to the company’s business license (equivalent to the Companies House or Chamber of Commerce’s excerpt), from which the name, corporate purpose, registered and paid-up share capital, and the name of the legal representative can be inferred.

            The data can then be verified by accessing the portal of the State Administration of Industry and Commerce (SAIC) of the province where the Chinese party is based.

            This first verification is essential to ensure that you do not waste time or even run into scams (here’s an in-depth article on Legalmondo’s blog).

            If You Don’t Own Your Trademark, Someone Else Will – and Charge You for It

            Trademark First, Trade Later. China operates on a first-to-file system for trademarks, which means that the first person or company to register a trademark – not necessarily the original creator or most famous user – gains the legal rights to it. This creates a serious risk: if you haven’t registered your trademark in China, someone else might do it before you, and then either use it freely or demand a hefty ransom to give it back. Even high-profile figures like Elon Musk and Michael Jordan have been entangled in costly and protracted disputes with Chinese trademark squatters. In many cases, getting the mark back is highly complicated, and sometimes legally impossible.

            To avoid this, register your trademarks early, even before entering the Chinese market. File directly with the China Trademark Office (CTMO) and don’t stop at the English version — consider registering a Chinese character version as well, since that is how your brand will often be known locally.

            Once that base is covered, clearly state in your contract that your Chinese partner is not allowed to file a registration of any of your trademarks in China, in Latin or Chinese characters, and that he will use trademarks and IP rights in strict conformance to the contract and your instructions.

            For a deeper dive into how to effectively protect your IP rights in China, check out our detailed article on the Legalmondo blog.

            Contracts can wait. First, get on the same page

            When negotiating with a Chinese partner, it’s often a mistake to begin the conversation by exchanging contract drafts. Instead, focus first on the substance — the relationship’s commercial and technical terms. Using a clear checklist of key discussion points (such as products, pricing, delivery terms, technical standards, after-sales support, exclusivity, duration, payment terms, etc.) helps ensure that both sides are aligned on what really matters. Take detailed notes and keep minutes of the discussions, especially where and when consensus is reached, and make sure those minutes are circulated and expressly agreed upon. Once substantial agreement has been achieved on the main terms, this memo can then be handed over to your lawyer, who will translate the business understanding into clear and coherent contractual language. This approach saves tons of time, as it helps avoid unnecessary back-and-forth on legal language before the core deal is in place.

            Think Your NDA Covers You in China? Think Again

            Yes, they are—and often underestimated. A well-drafted Non-Disclosure Agreement (NDA) is essential when the parties plan to exchange confidential information, such as technological know-how, commercial strategies, supplier data, or client lists. Especially in the early phases of negotiation or cooperation, before a main contract is signed, an NDA helps protect intellectual and business assets.

            However, as with all contracts in China, a generic NDA template copied from other jurisdictions will likely be of limited use. To be truly effective, the NDA must be adapted to the specifics of the Chinese legal environment. This includes ensuring that it is enforceable in China: the NDA should include the proper dispute resolution mechanism (see below on why you should consider applying Chinese law and litigating in China), and it must specify clear, valid, and proportionate penalties for breach. In Chinese practice, stating specific contractual penalties (liquidated damages) is often more effective than vague references to compensation, as courts and arbitrators in China tend to enforce these more reliably if they are reasonable.

            While a good NDA is useful, it often falls short in China’s manufacturing and sourcing landscape. This is where the NNN Agreement – standing for Non-Disclosure, Non-Use, and Non-Circumvention – becomes critical. Unlike standard NDAs that primarily focus on confidentiality, an NNN Agreement is designed to address the unique risks of doing business in China. It prevents the recipient from not only disclosing confidential information but also from using it for their benefit or bypassing the disclosing party to work directly with suppliers, clients, or partners. Which, in China, is a very real risk.

            This broader scope is vital when dealing with Chinese manufacturers or intermediaries, who may otherwise be tempted to replicate products or contact customers directly or through third parties. As seen with the NDA, also the NNN Agreement must be drafted in Chinese, governed by Chinese law, and enforceable in Chinese courts -otherwise, it may offer little real protection.

            Joint venture? Easy, Cowboy

            A joint venture is often the first proposal that comes up when negotiating with a potential Chinese partner. It seems appealing: sharing risks and investments, accessing the local market with an ally, leveraging their knowledge and network of contacts. But the reality is often very different from what it appears to be.

            A joint venture is a complex, expensive, and rigid corporate structure that requires significant investments of money, time, and human resources, as well as the ability to continuously manage often divergent interests among the partners. The vast majority of Sino-Foreign JVs have gone wrong, or will go wrong. Or very wrong. First and foremost, because the JV is usually managed by the Chinese partner, and exercising effective control over the company’s operations is a very challenging undertaking.

            Before going down this road, it is essential to ask yourself a few questions: Is the joint venture really indispensable for developing this business in China? (Spoiler: generally, no). Are there less restrictive and risky alternatives, such as a distribution agreement or a licensing agreement? (Yes, almost always). And above all: how well do we really know our potential partner?

            A joint venture should only be considered if it is strictly necessary for the project’s development, after carefully verifying the commercial viability and the reliability of the Chinese partner, and ensuring the ability to maintain effective control over the JV’s operations.

            It is better to start with simpler and more flexible forms of collaboration to test the market and the relationship with the other party before committing to such a demanding investment. Otherwise, the mirage of the joint venture risks turning into a nightmare that can be very costly.

            Memorandum of Understanding: Where Good Intentions Become Bad Contracts

            A Memorandum of Understanding (MoU) is a helpful tool at the early stage of a commercial relationship. It serves as a roadmap for future negotiations, where the parties outline the main principles and intentions that will guide the drafting of the final agreements. When used correctly, an MoU can significantly facilitate negotiations by ensuring that both sides commit to negotiating the agreement in good faith and share a common understanding of key points such as pricing models, territorial scope, exclusivity, milestones, budget, or performance expectations.

            However, an MoU must be used for what it is: a preparatory document, not a binding contract. Care must be taken to avoid ambiguity and unintended commitments. The text should clearly specify that the parties remain free to conclude – or not – the final agreements and which clauses are non-binding – such as the commercial framework or indicative timelines – and which provisions are binding, typically confidentiality, exclusivity during the negotiations (if agreed), governing law, and dispute resolution. A poorly drafted MoU, which includes overly precise and complete terms, can be misinterpreted as a final agreement, creating unnecessary legal risk. So yes, MoUs are valuable – but only when used correctly. If you’d like to know more, go deeper by reading this article.

            Bad Drafts, Big Headaches, Poor results

            Draft agreements used in China are often copied and pasted from incomplete, superficial, poorly organised templates written in bad English, which often do not match the Chinese version of the contract.

            Correcting and integrating these drafts is complicated and more time-consuming than starting from a good template, with suboptimal results.

            It would be better to propose a consistently constructed text and ask the other party to propose any changes and additions to this draft.

            Your Western Contract Template Won’t Work Here

            Even if an English-language contract is perfectly valid, there are many reasons why using contract templates built for other countries in the Chinese market is inadvisable.

            The first is the fact that Anglo-Saxon-based agreements, such as those for the U.S., refer to a common law system (which is based on judicial decisions and case law precedents) that is very different from that of civil law countries (such as China and Italy), which derives from the Roman legal tradition, based on a codified set of written laws.

            It follows that the layout of an agreement on the Anglo-Saxon model is different, much more detailed, and wordy than that of a typical agreement based on a civil law system. Since contract negotiations in China are generally lengthy and complex, working on redundant and complicated text at the outset does not help.

            If we stick to the example of a distribution contract, it should be added that it is advisable to apply Chinese law to provide for arbitration based in China (e.g., at CIETAC) or in Hong Kong or Singapore (third countries, where, however, the costs of the procedure increase significantly) as the mode of dispute resolution. So, the contract should be built on a model that conforms to the law that will apply to the relationship.

            Home Court Advantage Won’t Help You in China. In fact, quite the opposite

            This is a typical point of disagreement in the negotiation of an international contract: the parties aim to have the law of their own country apply, and to stipulate that any disputes be adjudicated by their domestic courts.

            In our case, insisting on the application of Italian (or any other foreign) law and state court is not a good idea: it should be considered, in fact, that a distribution agreement is carried out, for the vast majority, in the country where the distributor operates and where the products are sold (in our case, in mainland China).

            In disputes, the parties‘ (particularly the manufacturer’s) interest is to obtain a quick decision by the adjudicating body, especially if situations requiring immediate protection (such as unfair conduct or counterfeiting of trademarks and patents by the distributor) are ongoing.

            None of this is possible if one goes to an Italian judge (with lengthy litigation time and the need then for a complex and costly process to recognise and enforce the decision in China); on the contrary,  an arbitration in China, applying Chinese law, allows one to reach a decision quickly (on average 6-9 months) and, if necessary, also to obtain urgent measures to stop any unfair conduct.

            Chinese Law Isn’t a Black Box (If You Know What You’re Doing)

            The lawyer assisting you should know it.

            Therefore, it is not a leap in the dark, and one should not fear surprises.

            In addition, it should be remembered that an agreement is primarily based on the covenants that the parties have written in the contract; therefore, if the contract has been well drafted, the rules to be applied are clear.

            Finally, if we consider distribution agreements, keep in mind that they are a framework contract, within which a series of separate product sales contracts are concluded. If both countries are contracting parties to the 1980 Vienna Convention on the International Sale of Goods (CISG), then the uniform, clear, and balanced rules of the convention apply automatically, just don’t opt out!

            One Contract, Two Languages

            The contract is also valid in English only.  However, it is undoubtedly advisable to draft a Chinese version with facing text.

            This is for several reasons: first, it prevents the Chinese party from having to arrange for a translation of the text during negotiations for its own internal use (top managers often do not speak English), thus slowing down the various steps of negotiations.

            Also, to ensure that the Chinese side fully understands the agreement’s content and to avert misunderstandings (real or instrumental) about the interpretation of certain covenants.

            Finally, it should be borne in mind that if the contract were later to be used before a court or administrative authority in China, the only language admitted would be Chinese; for this reason, it is better to have already a text agreed and signed by the parties in Chinese as well, rather than having to prepare a unilateral translation later.

            Sign. And chop

            Does the contract need to bear the company’s official stamp? Yes, and this point is absolutely crucial. In China, a company’s official „chop“ (the red-ink stamp) is equivalent to a signature and is conclusive proof that the person signing the contract has the authority to represent the company. A signature alone, even from someone with an important-sounding title, may not be sufficient if it is not accompanied by the official chop. Without it, the contract might later be challenged or even considered void. Before signing, always verify that the stamp used matches the one registered with the company’s business license or official corporate records, and ensure that the stamp is applied on every page or at least on the signature page, in line with local practice.

            Don’t Let Your Contract Collect Dust

            Things change fast, especially in China. New products are added, market conditions evolve, people leave the company, new competitors emerge on the horizon, and so on. Companies constantly adapt to the new conditions, and so must the contract.

            Any change in the relationship should be formalized correctly. To avoid misunderstandings and disputes, it’s advisable to include an integration clause in the contract, specifying that any amendments or additions will only be valid if agreed in writing, signed by the parties’ authorized representatives, and annexed as an addendum to the original agreement.

            It’s not enough to include this clause – you must follow it consistently. If things change, agreements reached verbally, through Wechat messages, and through email exchanges may make things complicated if they are not formalised adequately according to the procedure set out in the original contract.

            If you’d like to go deeper, check out this article.

            Roberto Luzi Crivellini

            Rechtsgebiete

            • Schiedsgerichtsbarkeit
            • Vertrieb
            • Internationaler Handel
            • Rechtsstreitigkeiten
            • Immobilien
            Kontakt Roberto

            Schreiben Sie an Roberto





              Legalmondos Datenschutzbestimmungen lesen.
              This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

              How to negotiate your contract in China

              27. Januar 2026

              • China
              • Verträge
              • Vertrieb

              Foreign franchisors entering into franchise agreements in Spain should take careful note of the content of the judgment issued by the Provincial Court of Córdoba on November 20, 2025, and require that the partner(s) and the directors of the franchisee company expressly guarantee and indemnify the payment of any debts arising from the franchise agreement.

              Spanish corporate law establishes the principle of liability for the directors of corporations or limited liability companies when the company is subject to dissolution (for example, due to losses that reduce equity to less than 50% of the share capital) and, despite this, they fail to convene a meeting to adopt corrective measures (dissolution or capital increase).

              In the case of the aforementioned ruling, the franchisor was unable to collect the debt arising from the franchise agreement from the franchisee due to the latter’s insolvency; so it decided to claim that debt from the company’s administrator based on the provision mentioned above, that is, due to the fact that the franchisee company was facing dissolution due to losses and the administrator had not convened a shareholders’ meeting, as was his obligation, so that the shareholders could decide how to resolve the situation.

              The ruling we are discussing from the Court of Appeal of Córdoba upholds the lower court’s decision and dismisses the franchisor’s claim against the sole administrator of the franchisee company, stating that:

              With regard to liability for corporate debts under Article 367 of the Capital Companies Act, the court recognised the existence of the corporate debts, the presence of grounds for dissolution, the breach of the legal obligations by the corporate administrator, and his liability, but found that a ground for exoneration from liability existed in accordance with the doctrine of “known risk.” Thus, it was noted that the plaintiff is a franchisor and X. S.L. was the franchisee, and it was evident from the electronic communications that the franchisee was under constant monitoring and the franchisor was aware of the risk involved in the operations, halting the shipment of goods (clothing) as soon as the limits of the guarantees granted were exceeded, meaning the plaintiff voluntarily assumed the risk. For all these reasons, the claim was dismissed.

              In conclusion, and in light of the foregoing, the present franchise relationship and its conduct allow us to consider that it has been established that the franchisor (creditor) had greater knowledge of the franchisee’s (debtor’s) financial situation, beyond the information appearing in the annual accounts filed with the Commercial Registry, as it was the franchisee’s primary supplier. And this knowledge and control of the debt by the franchisor (through the increase in orders) justifies the exoneration of the corporate director’s liability for corporate debts under Article 367 of the Capital Companies Act, which leads to the dismissal of the appeal

              The legal theory or principle of Known/Accepted Risk, to which the judgment refers, holds that harm caused to a third party, with or without a contractual relationship in place, is not considered unlawful if the victim was aware of the risk and voluntarily assumed it.

              This doctrine was initially developed within the framework of tort liability: whoever engages in a risky activity and reaps its benefits must bear its negative consequences, that is, the risk—(cuius commodum, eius incommodum).

              However, case law has extended the application of this theory to the field of contractual liability, as demonstrated in the judgment under discussion.

              Therefore, since the plaintiff was aware of the defendant’s financial situation and solvency—having “monitored” its activity as a franchisor—and despite this, decided to maintain the contract’s validity, thereby increasing the debt, the ruling holds that the franchisor assumed the risk, which constituted grounds for exonerating the administrator from liability. However, more concerning than the above is that this “known risk” theory could be  considered applicable to the liability of the franchisee company itself, which could be exonerated from liability based on the franchisor’s monitoring of its activities.

              The conclusion of all the above is that, based on this application of the known risk theory, franchisors may face difficulties in claiming debts owed by the franchisee company from its directors in the event of the company’s insolvency; therefore, it is highly advisable that, when signing the franchise agreement, a joint and several guarantee for the franchise’s potential future debts be required from its directors and partners, which, moreover, is a fairly standard practice.

              In this way, the objection based on the theory of known risk would not come into play.

              Vietnam has been added to the EU list of non‑cooperative jurisdictions for tax purposes (Annex I), following the Council’s update of 17 February 2026.

              For EU companies buying goods and services from Vietnam, this is not an outright ban on trade, but rather a signal that substantially heightened tax governance scrutiny, documentation expectations, and (in some cases) more demanding payment execution will follow in the months ahead. The EU listing process is designed less to “name and shame” and more to encourage positive change through cooperation and dialogue, but once a jurisdiction is placed on Annex I, EU Member States implement “defensive measures” that can materially affect tax treatment, withholding obligations, and audit intensity for Vietnam-linked transactions.

              What the EU decision does (and does not) do

              The EU blacklist is a tax‑governance instrument: it does not prohibit EU businesses from importing goods from Vietnam or procuring Vietnamese services, and it does not alter Vietnam’s domestic tax regime, corporate income tax rules, withholding tax framework, or investment policies.

              At the same time, the EU can deepen cooperation with Vietnam on the political and economic track while still applying tax‑governance pressure through listing mechanisms, so businesses should be prepared for a “partnership plus scrutiny” environment rather than expecting the two to be perfectly aligned.

              In January 2026, the EU and Vietnam upgraded their relations to a Comprehensive Strategic Partnership, framed as a platform to strengthen cooperation across areas such as trade and investment, climate/energy, sustainable development and digital transformation-a signal that the blacklisting is a technical compliance tool, not a diplomatic rupture.

              The ideological paradox: a Socialist Republic on a tax-haven list

              Vietnam’s presence on the blacklist is striking when viewed in its broader political context. The EU blacklist was conceived after major tax-transparency scandals (the Panama Papers and LuxLeaks) to address jurisdictions that facilitate offshore structures or fail to meet information-exchange standards. In the Western imagination, “tax haven” connotes liberal microstates or offshore centres, yet Vietnam, governed by a Communist Party, now sits on the same list. This reflects the reality of Vietnam’s hybrid economic model: politically socialist, but economically pragmatic since the Đổi Mới reforms of the late 1980s, with selective tax incentives for special economic zones, high-tech investments and priority sectors that, in certain cases, can significantly reduce the effective tax burden for foreign investors. The EU’s concern is not Vietnam’s headline corporate tax rate but rather-at this stage-the absence of adequate exchange-of-information infrastructure, though the architecture of its preferential regimes has also attracted scrutiny in the past. The listing is a technical compliance issue, not an ideological one. 

              Why Vietnam was added: the listing criteria and timeline

              Vietnam has been subject to EU scrutiny since the very first iteration of the EU list in December 2017, when it was placed in Annex II (the “grey list”) alongside jurisdictions that have committed to reform but are not yet fully compliant. In October 2025, Vietnam was removed from Annex II after fulfilling its commitments on country-by-country reporting (CbCR), and appeared, at that point, to be on the path to full compliance. However, shortly afterwards-in November 2025-the OECD Global Forum published its peer review and rated Vietnam “Non-Compliant” with respect to the standard on Exchange of Information on Request (EOIR), a separate compliance area from CbCR, finding that further reforms remained outstanding and that improvements in the CbCR exchange framework were not expected before 2027. This OECD finding directly triggered the February 2026 move to Annex I-an escalation from the grey list to the blacklist, bypassing any intervening period of full compliance.

              The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), requiring compliance with AEOI and EOIR standards and membership of the Multilateral Convention on Mutual Administrative Assistance in Tax Matters; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.

              Vietnam’s response and the path to delisting

              Vietnam’s Ministry of Foreign Affairs responded publicly within days of the listing, defending the country’s tax transparency record and stating that the government is implementing a national action plan to follow OECD recommendations and expand tax cooperation with partners including the EU. Vietnam expressed readiness to engage with European authorities to ensure more objective and comprehensive assessments, and to promote cooperation for shared development and prosperity. Practitioner commentary suggests a concrete roadmap is achievable: with legislative amendments (decrees and circulars on EOIR procedures), the establishment of a dedicated EOIR unit, publication of enforcement statistics, and active technical engagement with the EU Code of Conduct Group from now through September 2026, Vietnam could realistically target removal from Annex I at the next EU review cycle in October 2026, although this timeline is ambitious and delisting is by no means guaranteed. The key point for EU businesses is that, while the listing may be relatively short-lived if Vietnam acts decisively, companies should not delay compliance preparations in reliance on early delisting-a proportionate, risk-based response is more appropriate than a wholesale restructuring of Vietnam-linked supply chains.

              How different payment types are affected in practice

              Goods (imports) are often the most straightforward in substance terms because there is usually a clear chain of documents: purchase orders, shipping documents, customs import paperwork, delivery notes, inspection/acceptance records and matching invoices.

              The risk uplift for goods is typically not about whether the purchase is real, but whether the overall supply chain and pricing remain coherent under scrutiny-for example, whether margins and intercompany arrangements around the import flow make commercial sense and are consistently documented.

              Services (outsourcing, consulting, IT development, marketing, support) tend to attract more questions because “what was delivered” is harder to evidence than a shipped product.

              If your EU entity pays a Vietnamese provider for services, expect to need a well‑organised evidence pack: a clear scope of work, time records or milestones, deliverables (reports, code repositories, tickets), acceptance sign‑offs, and a pricing rationale that matches the level of skill and effort involved.

              Royalties and IP-related payments (software licences, trademarks, know‑how, technology access) are particularly sensitive because they combine valuation complexity with cross‑border tax characterisation questions.

              Expect pressure-testing of (i) who truly owns and controls the IP, (ii) the contract chain and sublicensing rights, (iii) how the royalty rate was set using benchmarking or comparable arrangements, and (iv) whether the payment is genuinely for IP rather than a disguised service fee.

              Intragroup charges (management fees, shared services, cost recharges) are commonly the first area where tax authorities and counterparties ask for “benefit” evidence and allocation logic.

              Where Vietnam sits inside a group value chain, be ready to show why a charge exists, how it was calculated, how the recipient benefited, plus consistent intercompany agreements and transfer pricing support.

              Financing and treasury flows (interest, guarantees, cash pooling, factoring, trade finance) trigger the most intensive technical review because they involve both tax outcomes and financial crime/compliance sensitivities.

              Even where the structure is legitimate, these flows are more likely to be escalated internally for enhanced review and may require more supporting documentation before execution.

              How European banks may respond (and what that looks like in practice)

              Banks in the EU operate under a risk‑based approach to financial crime and compliance, and they may apply de-risking decisions, meaning they can choose to restrict or exit relationships or transaction types they view as exceeding their risk appetite or being operationally too costly to monitor. EU supervisory frameworks acknowledge that de-risking exists and call for proportionate, evidence-based risk assessments rather than indiscriminate blanket exclusions, but in practice banks have significant discretion.

              For an EU company initiating a bank transfer to a Vietnamese counterparty, the following discretionary measures can arise in practice, even where the payment is entirely lawful and commercially routine.

              A bank can pause execution and request additional documents before releasing funds, seeking comfort on the purpose and legitimacy of the transaction under its internal controls.

              Typical requests include the underlying contract or statement of work, invoices, proof of delivery or performance, an explanation of business purpose, and information on the beneficiary’s beneficial ownership or corporate structure.

              A bank can route the payment through manual review queues rather than straight-through processing, particularly for first-time beneficiaries, unusually large amounts, or payments with vague narratives that do not clearly describe the purpose.

              This creates operational knock-ons: late supplier settlement, goods held pending payment confirmation, or service suspension where the vendor operates on strict payment triggers.

              A bank can impose internal conditions as part of its customer-specific risk controls-for example requiring richer payment details, stricter invoice descriptors, or pre-approval workflows for Vietnam-corridor payments.

              A bank can decline to process specific transactions or decide to exit certain corridors, client types, or business models entirely as a risk-management choice. German financial institutions are described as applying enhanced due diligence, requiring full transparency of transaction purpose and ownership for Vietnam-linked payments.

              Where a payment is declined, the practical solution is often to adjust the execution setup-alternative banking channel, revised documentation pack, or modified payment mechanics-while keeping the underlying commercial relationship intact.

              EU companies are advised to develop a “Banking Compliance Pack” for Vietnam-corridor payments: a pre-assembled set of documents (contract, invoice, proof of delivery/performance, business rationale memo, and beneficial ownership information) that can be submitted proactively or in response to bank queries within hours rather than days.

              Non-tax defensive measures and EU funding implications

              Beyond tax measures, being on the EU blacklist triggers non-tax consequences that affect Vietnam’s economic relationship with the EU more broadly. EU investment programmes cannot channel funding through entities located in Vietnam, because using such an entity contradicts the core legal purpose of these funds, which are designed to promote good governance, transparency, and the fight against illicit financial flows. Affected funds include the European Fund for Sustainable Development (EFSD/NDICI), which de-risks major investments in areas like energy and digital; the InvestEU programme (which replaced the former EFSI); and the External Lending Mandate (ELM), which provides EIB loans for major infrastructure outside the EU. In addition, the General Framework for STS securitisation imposes separate restrictions on the use of entities in blacklisted jurisdictions within securitisation structures. For Vietnamese entities and their EU partners working on donor-funded or ESG-driven projects, this can be a significant constraint, as subsidiaries and other businesses in Vietnam may be cut off from these sources of EU financing.

              DAC6 reporting and public country-by-country reporting

              Cross-border arrangements involving Vietnam are now subject to heightened DAC6 scrutiny. In particular, Hallmark C.1(b)(ii) may be triggered where a deductible cross-border payment is made by an EU-based associated enterprise to a tax resident in Vietnam, subject to Member State-specific implementation of the main benefit test and other conditions. Large multinationals (consolidated revenue of EUR 750 million or more in each of the last two fiscal years) must also prepare and publicly disclose a Public Country-by-Country Report. Under the EU Public CbCR Directive, Vietnam activities must be reported separately-not aggregated as “Rest of the World”-disclosing a list of all consolidated subsidiaries, description of activities, number of full-time equivalent employees, revenues (including related-party revenue), profit or loss before tax, income tax accrued and paid, and accumulated earnings. For FY 2025 and FY 2026, Vietnam information is already reportable separately by affected multinationals.

              Country notes (alphabetical)

              Belgium: Belgium applies non-deductibility of costs, CFC rules, and participation exemption limitations linked to both the EU list and certain domestic criteria. A critical Belgian-specific rule is the reporting obligation for payments made to entities in blacklisted jurisdictions where the aggregate of such payments exceeds EUR 100,000 in the taxable period; once this threshold is met, each such payment must be reported in the annual tax return, and any payment that is not reported, or that cannot be justified on specific grounds, is not deductible. Belgium follows a dynamic approach to the EU list, meaning EU list updates take effect automatically without a further domestic step. For Belgian payers, immediate practical priorities are: (i) identifying all Vietnam-linked payment streams above EUR 100,000, (ii) ensuring the reporting mechanism in the annual tax return is in place, and (iii) building the justification file for each reported payment.

              France: France applies all four defensive measures-non-deductibility of costs, CFC rules, withholding tax, and participation exemption limitation-but via a national decree-based list that refers to the EU list while also applying additional French domestic criteria. France follows a static approach, updating its domestic non-cooperative state list through an annual Decree in the Official Journal, with tax consequences applying from the first day of the third month following publication. The last French update took place in April 2025, and at the time of writing (May 2026) no subsequent decree incorporating Vietnam has been published. A further update is expected imminently and will likely include Vietnam. Once Vietnam appears on the French list, key measures include: a 75% withholding tax on interest, royalties, dividends and service fees (counterevidence possible); denial of the participation exemption (counterevidence possible for jurisdictions meeting certain criteria); denial of deductibility of interest, royalties and service fees (counterevidence possible); and a stricter CFC rule under which the burden of proof is reversed and foreign withholding taxes cannot be credited against French CFC income. French payers should monitor the next French decree closely and prepare counterevidence files now so they are ready the moment the decree is published.

              Germany: Germany applies all four defensive measures through the Tax Haven Defence Act (Steueroasen-Abwehrgesetz, StAbwG), linked to the EU list via a Tax Haven Defence Ordinance that is updated once per year, typically at year-end taking into account the October EU list update. The expected sequence for Vietnam is: December 2026-amendment to the Tax Haven Defence Ordinance to incorporate Vietnam; from 2027 (Year 1)-stricter CFC rules and extended withholding tax of 15% (plus a 5.5% solidarity surcharge) apply to income from financing relationships, insurance or reinsurance services, legal and advisory services, and trading of goods and services; from 2029 (Year 3)-denial of the participation exemption activates; from 2030 (Year 4)-denial of deductible business expenses activates. Importantly, Germany’s extended withholding tax can override double tax treaties. The multi-year ramp-up means that immediate German impacts are CFC scrutiny and withholding tax friction on specific payment types, while the broader expense deduction denial will only bite from 2030 onwards-giving German payers time to prepare, but making early documentation investment worthwhile.

              Italy: Italy uses the EU list for monitoring and deductibility purposes under Article 110 TUIR: costs connected with counterparties in Annex I jurisdictions are generally deductible up to “normal value,” while amounts above normal value require evidence of an effective economic interest, and all such costs must be separately indicated in the annual income tax return (Modello REDDITI). Italy’s framework is directly triggered by the EU list, meaning Vietnam’s Annex I status is effective for Italian purposes from the publication of the Council conclusions in the EU Official Journal, without any further domestic implementing step being required.

              For Italian payers, service costs, royalties, and intragroup charges to Vietnam are the most sensitive categories: robust documentation of deliverables, pricing and economic rationale is essential, and accounting teams need to ensure they can cleanly isolate Vietnam-linked costs in the year-end reporting workflow.

              Malta: Malta follows a dynamic approach to the EU list, meaning Vietnam’s Annex I status takes effect automatically in Malta’s tax framework. Malta applies a limitation of the participation exemption on dividend income derived from a participating holding in a body of persons that has been resident in a jurisdiction on the EU list for a minimum period of three months during the year immediately preceding the year of assessment, subject to a counter-evidence exception based on “people functions.” Malta does not apply non-deductibility, CFC, or withholding tax defensive measures against EU-listed jurisdictions as primary tools, so the main Malta-specific concern for holding and investment structures is participation exemption eligibility and substance evidence. For Malta-based groups, the practical response is to keep board materials, contracts, and commercial rationale tightly aligned, and to prepare for more intensive counterparty due diligence (beneficial ownership, substance, and tax residency) from EU customers and financial institutions.

              Netherlands: The Netherlands applies a 25.8% conditional withholding tax on interest, royalties, and (since 1 January 2024) dividends paid to related entities in EU-listed jurisdictions or low-tax jurisdictions, as well as CFC rules with counterevidence possible. The Netherlands follows a static approach: the list applicable for a tax year is based on the EU list as it stood at the end of the preceding year, using the October update as the reference. This means the Dutch 2027 Regulation will include Vietnam only if Vietnam remains on the EU list after the October 2026 review cycle. No withholding tax consequences arise for Dutch payers immediately in 2026 as a direct result of Vietnam’s February 2026 listing, but the October 2026 review date is critical: if Vietnam remains listed, Dutch conditional withholding tax obligations will activate from 1 January 2027. Dutch payers with intragroup dividend, interest, and royalty flows to Vietnam should use the current window to restructure documentation and pricing support and to assess whether existing double tax treaty protections remain effective in light of the conditional WHT mechanics.

              Spain: Spain does not mechanically mirror the EU list, but operates its own domestic list of non-cooperative jurisdictions, which is updated separately and can include or exclude jurisdictions differently from Annex I. Spain applies a static approach, with the list specified in law. The practical implication is that the Spanish domestic tax consequences of Vietnam’s listing depend on whether and when Spain updates its domestic list to include Vietnam, rather than arising automatically from the EU Council’s February 2026 decision. For Spain-based procurement and finance teams, do not assume a one-to-one mapping between EU-list status and Spanish domestic tax outcomes, but do treat Vietnam-linked transactions as higher-scrutiny items from an audit and counterparty due diligence perspective, and invest in cleaner contracting, invoice narratives, and performance evidence for services, royalties, and intragroup charges.

               

              Practical next steps for EU companies

              1. Map exposures: Identify and quantify all payment streams relating to Vietnamese entities, broken down by payment type (goods, services, royalties, intragroup charges, financing).
              2. Understand your Member State’s rules: Confirm which defensive measures apply in the relevant EU payer jurisdiction, when they take effect (immediately or staged), whether the jurisdiction follows the EU list dynamically or statically, what relief conditions exist, and what documentation is required.
              3. DAC6 readiness: Assess whether Vietnam-linked arrangements trigger DAC6 reporting obligations (particularly deductible cross-border payments between associated enterprises) and ensure reporting infrastructure is in place.
              4. Transfer pricing and substance: Validate intercompany services, royalties and financing arrangements by reassessing pricing, benefit tests and contractual terms; strengthen contemporaneous documentation before year-end.
              5. Public CbCR messaging: If within scope, assess public CbCR disclosure implications for Vietnam operations and align tax, legal, ESG and investor-relations communications accordingly.
              6. Vendor due diligence: Implement or strengthen due diligence on Vietnamese counterparties, including tax residence evidence, beneficial ownership documentation, and substance and economic activity confirmation.
              7. Banking compliance pack: Build a pre-assembled documentation pack for Vietnam-corridor payments (contract, invoice, proof of delivery/performance, business rationale, beneficial ownership information) to address bank queries within hours rather than days.
              8. Monitor the October 2026 review: Track Vietnam’s progress on EOIR reforms and the EU Code of Conduct Group’s October 2026 review cycle. If Vietnam is removed from Annex I in October 2026, Member States that follow a static approach (Germany, Netherlands) will not apply defensive measures to Vietnam in their 2027 rules; France, which also follows a static approach but applies additional domestic criteria, may nonetheless retain Vietnam on its own non-cooperative state list even after EU delisting. The October 2026 outcome is therefore commercially significant for medium-term planning.
              9. Embed internal governance: Install jurisdiction-risk gateways in approval workflows for new entities, contracts, loans, and IP arrangements involving Vietnam, to ensure proper sign-off and documentation from inception.

              Under French Law, franchisors and distributors are subject to two kinds of pre-contractual information obligations: each party must spontaneously inform their future partner of any information they know is decisive to their consent. In addition, for certain contracts – i.e a franchise agreement – there is a duty to disclose a limited amount of information in a document. These pre-contractual obligations are mandatory rules of public policy. Thus, these two obligations apply simultaneously to the franchisor, distributor or dealer when negotiating a contract with a partner.

              Takeaways

              • The information required by the DIP must be fully completed and updated ;
              • The information not required by the DIP but provided by the franchisor must be carefully selected and sincere;
              • Franchisee must be given the opportunity to request additional information from the franchisor;
              • Franchisee’s experience in the economic sector enables the franchisor to considerably limit its exposure to the risk of contract cancellation due to a defect in the franchisee’s consent;
              • Franchisor must keep the proof of the actual disclosure of pre-contractual information (whether mandatory or not).
              • The general information obligation under common law (Article 1112-1 of the French Civil Code) may apply concurrently with the special disclosure obligation provided for under Article L. 330-3 of the French Commercial Code.

              General duty of disclosure for all contractors

              What is the scope of this pre-contractual information?

              This obligation is imposed on all counterparties, for any kind of contract. Indeed, article 1112-1 of the Civil Code states that:

              (§. 1) The party who knows information of decisive importance for the consent of the other party must inform the other party if the latter legitimately ignores this information or trusts its counterparty.

              (§. 3) Of decisive importance is the information that is directly and necessarily related to the content of the contract or the quality of the parties. »

              This obligation applies to all contracting parties for any type of contract.

              French courts have ruled that this general information obligation may apply concurrently with the special disclosure obligation under Article L. 330-3 of the French Commercial Code (see below), answering the question in the affirmative (Paris Court of Appeal, 27 March 2024, no. 22/12665). The scope of the latter has however, been defined by the French Supreme Court (« Cour de cassation ») : only information bearing a direct and necessary link with the subject matter of the contract or the qualities of the parties is subject to the disclosure obligation (Cass. com., 14 May 2025, no. 23-17.948).

              Who bears the burden of proof?

              The burden of proof rests on the person who claims that the information was due to him. He must then prove (i) that the other party owed him the information but (ii) did not provide it (Article 1112-1 (§. 4) of the Civil Code)

              Special duty of disclosure for franchise and distribution agreements

              Which contracts are subject to this special rule?

              French law requires (art. L.330-3 French Commercial Code) the provision of a pre-contractual information document (in French “DIP”) and the draft contract, by any person:

              • which grants another person the right to use a trade mark, trade name or sign,
              • while requiring an exclusive or quasi-exclusive commitment for the exercise of its activity (e.g. exclusive purchase obligation). The quasi-exclusive nature of the commitment is assessed on a case-by-case basis by French courts, independently of the 80% purchase threshold provided for under EU Regulation 2022/720, which is treated merely as an indicative reference.

              Concretely, DIP must be provided, for example, to the franchisee, distributor, dealer or licensee of a brand, by its franchisor, supplier or licensor as soon as the two above conditions are met. French courts have moreover recently had occasion to confirm that the scope of the DIP obligation is not limited to franchise agreements but extends, in particular, to dealership agreements, provided the above-mentioned conditions are met (Paris Court of Appeal, 22 May 2024, no. 22/08672).

              When the DIP must be provided?

              DIP and draft contract must be provided at least 20 days before signing the contract, and, where applicable, before the payment of the sum required to be paid prior to the signature of the contract (for a reservation).

              What information must be disclosed in the DIP?

              Article R. 330-1 of the French Commercial Code requires that DIP mentions the following information (non-detailed list) concerning:

              • Franchisor (identity and experience of the managers, career path, etc.);
              • Franchisor’s business (in particular creation date, head office, bank accounts, history of the development of the business, annual accounts, etc.);
              • Operating network (members list with indication of signing date of contracts, establishments list offering the same products/services in the area of the planned activity, number of members having ceased to be part of the network during the year preceding the issue of the DIP with indication of the reasons for leaving, etc.);
              • Trademark licensed (date of registration, ownership and use);
              • General state of the market (about products or services covered by the contract) and local state of the market (about the planned area) and information relating to factors of competition and development perspective. With respect to the local market, the French Supreme Court (« Cour de cassation ») has held that the franchisor is not required to conduct a market study, but that if one is provided, it must be accurate and verifiable (Cass. com., 18 Oct. 2023, no. 22-19.329).;
              • Essential element of the draft contract and at least: its duration, contract renewal conditions, termination and assignment conditions and scope of exclusivities;
              • Financial obligations weighing in on contracting party: nature and amount of the expenses and investments that will have to be incurred before starting operations (up-front entry fee, installation costs, etc.).

              Beyond the exhaustiveness of the information required under the aforementioned provision, the DIP is subject to a qualitative standard. All information provided — including information provided spontaneously — must be accurate and truthful to ensure that the prospective network member’s consent is fully informed and free from any defect.

              How to prove the disclosure of information?

              The burden of proof for the delivery of the DIP rests on the debtor of this obligation: the franchisor (Cass. Com., 7 July 2004, n°02-15.950). The ideal for the franchisor is to have the franchisee sign and date his DIP on the day it is delivered and to keep the proof thereof.

              The clause of contract indicating that the franchisee acknowledges having received a complete DIP does not provide proof of the delivery of a complete DIP (Cass. com, 10 January 2018, n° 15-25.287).

              The franchisor is subject to a duty to update the DIP until the contract is signed

              In a ruling dated 26 June 2024 (no. 23-14.085 PB), the French Supreme Court held that formal compliance of the DIP at the time of its delivery is not sufficient to exonerate the franchisor from all pre-contractual liability. This position was confirmed by a subsequent ruling of 4 December 2024 (no. 23-16.684).

              These two decisions appear to establish a duty of ongoing updates incumbent upon the network head throughout the entire period between the delivery of the DIP and the execution of the contract. Where significant events occur during that interval — insolvency proceedings affecting network members, major litigation, or structural changes to the network — the network head is required to proactively inform the prospective member. The court then examines whether the failure to disclose such information was liable to distort the candidate’s assessment of the network and, consequently, to vitiate his consent (Cass. com., 26 June 2024, op. cit.).

              A franchisor may therefore not shelter behind the initial regularity of the DIP to discharge its disclosure duty where the network’s situation has materially changed prior to the signing of the contract.

              Sanction for breach of pre-contractual information duties

              Criminal sanction

              Failing to comply with the obligations relating to the DIP, franchisor or supplier can be sentenced to a criminal fine of up to 1,500 euros and up to 3,000 euros in the event of a repeat offence, the fine being multiplied by five for legal entities (article R.330-2 French commercial Code).

              Cancellation of the contract for deceit

              The contract may be declared null and void in case of breach of either article 1112-1 of the French Code civil or article L. 330-3 of the French Code de commerce. In both cases, failure to comply with the obligation to provide information is sanctioned if the applicant demonstrates that his or her consent has been vitiated by error, deceit or violence. In this respect, courts conduct a concrete, case-by-case assessment, taking into account in particular the professional experience and personal due diligence of the distributor: a sophisticated candidate will face greater difficulty in establishing deceit, and his experience in the relevant sector may be sufficient to exonerate the franchisor (Paris Court of Appeal, div. 5 – ch. 11, 26 Apr. 2024, no. 21/13205), even where the information provided was incomplete or inaccurate (Paris Court of Appeal, 20 Jan. 2021, no. 19/03382).

              The path is therefore narrow for the franchisee: he cannot invoke error concerning profitability when it is he who draws up his plan, and even when this plan is drawn up by the franchisor or based on information drawn up and transmitted by the franchisor, the experience of the franchisee who knew the local market may exonerate the franchisor.

              Regarding deceit, Courts strictly assess its two conditions which are:

              • (a material element) the existence of a lie or deceptive reticence (article 1137 French Civil Code), and
              • (an intentional element) the intention to deceive his counterparty (article 1130 French Civil Code).

              Where applicable, the parties must return to the state they were in before the contract.

              Damages

              Although the claims for contract cancellation are subject to very strict conditions, it remains that franchisees/distributors may alternatively obtain damages on the basis of tort liability for non-compliance with the pre-contractual information obligation, subject to proof of fault (incomplete or incorrect information), damage (loss of opportunity of not contracting or contracting on more advantageous terms) and the causal link between the two.

              From Reporting to Governance and Risk Allocation

              Environmental, Social and Governance (ESG) considerations are playing an increasingly influential role in how businesses operate, invest, and manage risk, especially within the European Union, where corporate sustainability and responsibility regulation have been on the agenda in recent years.

              With the adoption of the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD), many companies anticipated a significant shift in compliance. Since then, the EU has introduced simplification measures to streamline reporting and due diligence obligations, reduce the administrative burden, and improve proportionality, particularly for small and medium-sized enterprises (SMEs), while maintaining the core sustainability objectives.

              While opinions may differ regarding the evolution of environmental, social, and governance (ESG) in EU regulation and the subsequent postponements of reporting obligations, regulatory developments appear to have, in practice, supported a shift in perspective. Sustainability is no longer viewed solely as a reporting requirement, but increasingly as a matter of governance, strategy, and risk allocation. This development is welcome, as the regulatory framework’s underlying objective is to advance the green transition, which in turn requires a change in how companies integrate sustainability into their decision-making and operations.

              This focus on sustainability influences businesses of all sizes, including SMEs. Even companies not directly subject to the CSRD or CSDDD anticipate that ESG requirements will be passed down through the supply chain. Many non-reporting SMEs are already embedding sustainability practices, and this trend is likely to continue. In other words, sustainability policies are already affecting companies well before any formal reporting obligations kick in.

              Environmental, Social, and Governance in Contract Architecture

              One of the key means of implementing environmental, social, and governance obligations and objectives in day-to-day business operations is through commercial contracts and the requirements and commitments embedded in them.

              Even where a company itself is not directly subject to extensive reporting or due diligence obligations, corporate sustainability and responsibility expectations flow through the market via contractual relationships. Larger undertakings within the scope of CSRD and, in due course, the CSDDD require contractual assurances, information rights, and cooperation from their business partners, including SMEs operating within their supply chains. As a result, corporate sustainability and responsibility become a question of contractual architecture. Companies must consider not only price mechanisms, liability caps and termination triggers, but also how environmental, social and governance risks and obligations are addressed and allocated between the parties through legally enforceable contractual terms.

              Translating Policies into Binding Obligations

              A typical starting point is the incorporation of a code of conduct or sustainability policies into commercial contracts, often by reference and through an express obligation on the contracting party to comply with them. From a legal standpoint, this raises important drafting questions. Many codes are drafted as high-level public statements. When such policies are converted into contractual commitments, their wording, scope, and hierarchy relative to the main agreement require careful consideration. The obligations must be sufficiently clear to define the parties’ expectations, coherent with other contractual provisions, and proportionate to the commercial relationship. The obligations must also be capable of practical implementation and effective monitoring in the context of the agreement.

              In practical terms, this may mean requiring the supplier to comply with specific labour standards, maintain documented environmental management procedures, report on emissions data, ensure traceability of key raw materials, or allow reasonable access for audits. Clearly defining what is expected, how compliance is demonstrated, and what consequences follow from non-compliance is essential for the clause to function effectively. Otherwise, clauses that appear comprehensive in theory and ambitious in scope may offer limited enforceability in practice, and their impact may remain marginal if compliance cannot be effectively monitored and verified. If policies are not properly translated into binding and operational obligations, the company risks a mismatch between what it promises publicly and what is actually required under its contracts. This may undermine consistency, weaken risk management, and expose the company to reputational and governance risks if its own stated principles cannot be enforced within its supply or distribution chain.

              As part of this process, companies must also consider the protection of trade secrets and confidential information. For example, broad audit or data-reporting obligations may raise concerns about sensitive business information. Contractual terms should balance transparency with the need to protect legitimately proprietary data. Clauses such as confidentiality agreements or carve-outs for trade secrets can be used to ensure that sharing ESG-related information does not compromise confidential business information or competitive advantages.

              Environmental, Social and Governance Clauses Across Different Contract Types

              Besides codes of conduct and sustainability policies, environmental, social and governance-related clauses increasingly take more tailored and transaction-specific forms. In shareholder agreements, sustainability objectives may be reflected in governance structures or even linked to financial outcomes, for example by aligning dividend policies or incentive mechanisms with agreed climate targets. In employment contracts, obligations may extend beyond general compliance and include participation in corporate sustainability training programmes or adherence to internal sustainability guidelines as part of performance expectations.

              In supply and manufacturing agreements, environmental, social and governance provisions may address traceability of raw materials, emissions reporting, waste management, energy efficiency standards or the right to replace a supplier if its environmental practices materially conflict with the contracting party’s sustainability commitments. Such contractual mechanisms increasingly affect SMEs operating as suppliers, as ESG expectations pass through the supply chain.

              Construction contracts often include detailed requirements regarding material selection, lifecycle impacts, carbon footprint calculations and recycling or waste reduction procedures. For example, in Finland, legislation imposes low-carbon and energy efficiency requirements for new buildings, and a party undertaking a construction project is subject to mandatory reporting obligations relating to construction and demolition waste. These statutory requirements are typically reflected and implemented in the relevant project and construction contracts.

              Across these different contract types, the practical significance is consistent. Environmental, social and governance considerations move from the level of general policy into legally enforceable obligations tailored to each specific legal relationship. Contracts function as a mechanism for allocating responsibility, managing compliance risk and aligning commercial incentives with sustainability objectives.

              Proportionate Monitoring and Audit Rights

              In the contractual implementation and monitoring of environmental, social and governance obligations, audit and information rights play a central role. They are closely linked to effective oversight and form an integral part of a coherent contractual framework. In practice, companies typically seek access to relevant data from their business partners and, where appropriate, establish inspection or audit rights to enable meaningful monitoring and verification, whether conducted directly by the company or, commonly, by an independent expert appointed for that purpose.

              However, such arrangements must remain balanced. Overly burdensome provisions may needlessly disrupt day-to-day operations and reduce the willingness to cooperate, particularly for SMEs with limited administrative capacity. By contrast, well-designed mechanisms that balance transparency with confidentiality and operational feasibility are more defensible and more likely to function effectively in practice.

              Contractual Remedies

              As a general principle, the consequences of a breach are determined by the terms agreed between the parties. In practice, the parties will typically first seek to resolve the matter through discussion and good faith negotiations, allowing the non-compliant party an opportunity to clarify the situation and implement corrective actions within a reasonable timeframe. If negotiations do not lead to a resolution, it may be appropriate to proceed to stronger measures, such as contractual penalties, indemnification obligations, price adjustments, temporary suspension rights or other agreed sanctions, applied in light of the nature and severity of the breach.

              The contract should clearly define what constitutes a breach, how it is assessed and what remedies are available in each scenario. Clear and proportionate step-by-step remedy structures enhance legal certainty, reduce the risk of disputes and ensure that material or repeated breaches may trigger more significant consequences, including termination where justified.

              Strategic and Voluntary Environmental, Social and Governance Commitments

              In the current EU landscape, implementing ESG considerations in commercial contracts is no longer simply a matter of reacting to directives. It is a broader exercise in risk management and corporate governance. Even as the implementation details of the directives may continue to evolve, market expectations, financing conditions and reputational considerations remain key drivers of sustainability integration.

              In addition, some companies choose to position themselves as frontrunners in sustainability for strategic and reputational reasons. They may therefore incorporate voluntary environmental, social and governance mechanisms and requirements into their contracts that go beyond, or are not directly derived from, binding directives. By doing so, they signal to investors, customers and other stakeholders that sustainability is treated as a core business priority rather than merely a compliance obligation.

              At the same time, it is important to recognise the practical limits of such commitments. Ambitious sustainability requirements may be more challenging for SMEs with limited financial and administrative resources. Meeting extensive reporting, certification or traceability standards can require investments in systems, personnel and external expertise. If contractual expectations are not calibrated to the size and capacity of the counterparty, they may limit the ability of SMEs to participate in certain supply chains. A balanced and proportionate approach helps ensure that sustainability objectives remain achievable and commercially workable across the contractual chain.

              Conclusion

              For legal practitioners, the central task is not to increase the number of environmental, social and governance clauses as such, but to ensure their quality, coherence and practical relevance. The objective is to design contractual mechanisms that are proportionate, enforceable and aligned with the company’s actual risk profile, industry context and sustainability priorities. Commercial contracts remain one of the most concrete tools for translating sustainability strategy into operational practice. Moreover, every contract lawyer should understand and apply key sustainability principles in their work, ensuring that ESG commitments become integral to legal advice and contract drafting.

              The Strait of Hormuz is likely the most strategically important point for the global oil trade. In fact, approximately 20% of the world’s oil and gas passes through this narrow passage between the Gulf of Oman and the Persian Gulf every day.

              Following the outbreak of war in the region, the impact on energy markets was almost immediate: oil prices quickly rose above $100 per barrel, and it is unclear how high they may climb in the coming weeks and months. As a result, transportation, production, and procurement costs are rising across industrial supply chains in many sectors.

              For many companies engaged in international trade, this phenomenon creates a very real problem. Contracts signed months (or years) earlier—perhaps at a fixed price—must be fulfilled in a completely different economic context.

              A manufacturer that sells goods for delivery in six or twelve months may find itself producing and shipping at much higher energy costs, while the price agreed upon with the customer remains unchanged.

              This is a situation that recurs cyclically, for various reasons: from the COVID-19 pandemic to the subsequent raw materials crisis, and on to current geopolitical tensions.

              When the increase in costs is so sudden and significant, a question inevitably arises: must the contract still be performed under the original terms, or is it possible to suspend or renegotiate the agreement to adapt it to the new circumstances?

              The answer depends on several factors: first and foremost, on what the parties have (or have not) provided for in the contract, but also on the law applicable to the relationship and on the interpretation that judges or arbitrators may give to the rules in the event of a dispute.

              Force Majeure and Hardship: Two Different Concepts

              When extraordinary events occur—such as a war, an energy crisis, or the disruption of a trade route—many operators immediately invoke force majeure. However, in most cases, these situations fall instead under the category of hardship.

              It is therefore essential to distinguish between these two situations.

              When an Event Constitutes Force Majeure

              Force majeure applies to cases where an extraordinary and unforeseeable event makes it impossible to perform the contract.

              The characteristics of the grounds for exemption from liability depend on the law applicable to the commercial relationship, but generally require:

              • unpredictability of the event;
              • the event being beyond the affected party’s control;
              • the impossibility of avoiding or overcoming the event through reasonable efforts.

              Typical examples include:

              • orders from authorities requiring the suspension of production
              • embargoes or export bans
              • logistical disruptions caused by war

              In these situations, performance is not merely more costly: it becomes objectively impossible. The consequence is that the party unable to perform is generally exempt from liability for the duration of the event.

              Hardship

              The situation is different when performance of the contract remains possible but becomes economically much more burdensome.

              The concept of hardship is generally based on four prerequisites:

              1. an event occurring after the conclusion of the contract
              2. unpredictability and extraordinary nature of the event
              3. a substantial alteration of the economic balance of the contract
              4. excessive burden of performance, but not impossibility

              A sharp increase in the price of oil, gas, or other raw materials often falls into this category.

              Goods can be produced and delivered, but doing so may entail costs far higher than those anticipated when the contract was signed.

              The ripple effect along the international supply chain

              In global industrial supply chains, the same goods are often the subject of a series of consecutive contracts.

              The manufacturer sells to a trader, who sells to a processing company, which resells to an importer in another country, who in turn distributes the product to the end market.

              When a hardship event occurs—such as a sharp rise in energy prices—the effect tends to ripple throughout the entire supply chain.

              The first party affected by the cost increase will try to pass the increase on to its contractual counterpart, who, in turn, will find themselves in the same situation with the next link in the chain.

              The risk is clear: one of the operators in the middle of the chain may face increased upstream costs without being able to pass them on downstream.

              This is one of the most common problems in international supply chains.

              What happens if there is no clause regarding price fluctuations

              In commercial practice, it often happens that parties operate on the basis of orders and order confirmations without a formal written contract, or that a contract exists but contains no provisions regarding price fluctuations or hardship.

              In such cases, when costs increase sharply, it is necessary to determine which law applies to individual sales contracts across the supply chain.

              This can lead to very different situations:

              • one law may allow for price revision or termination of the contract
              • another law aplicable to a second contract may not provide for equivalent remedies
              • a third contract may contain much more restrictive contractual clauses

              The practical result is that an operator in the middle of the chain may face a price increase from their supplier without being able to pass it on to the customer.

              A Common Legal Framework: The Vienna Convention on the International Sale of Goods (CISG)

              Fortunately, many international sales contracts are governed by the 1980 Vienna Convention on the International Sale of Goods (CISG).

              The convention has been ratified by 97 countries, including Italy and most major trading partners, such as the U.S., Canada, China, Germany, France, Spain, etc.

              The central provision is Article 79, according to which a party is not liable for non-performance if it proves that the non-performance is due to an impediment:

              • beyond its control
              • unforeseeable at the time of the conclusion of the contract
              • unavoidable or insurmountable

              Traditionally, this provision has been applied to cases of force majeure.

              In recent years, there has been debate over whether it can also be applied to cases of hardship, but international case law tends to be very cautious.

              International case law on Hardship

              Court decisions reflect a rather strict approach.

              In some cases, even very significant increases in raw material costs have not been considered sufficient to modify or suspend the contract.

              The reasoning is simple: those who operate professionally in international trade must take into account a certain degree of market volatility.

              Only when the increase in costs exceeds an exceptional and unforeseeable level such as to radically alter the balance of the contract can hardship be invoked.

              One of the most frequently cited cases is the Belgian Supreme Court’s decision in the Scafom case, which recognized the right to renegotiate the contract following a 70% increase in the price of steel.

              However, such cases are relatively rare.

              Generic clauses that serve no purpose

              Many contracts contain hardship clauses copied from standard templates (boilerplate).

              The problem is that these clauses often:

              • list the effects of hardship
              • but do not define when hardship actually occurs

              The result is that, when prices rise, the parties may have very different opinions on what constitutes an “exceptional” increase and whether the event in question was “unforeseeable” or not.

              The clause, therefore, does not resolve the issue, but defers it to discussion between the parties and, in the event of a failure to reach an agreement, to the courts or arbitrators.

              What criteria can define a hardship situation

              To make the clause truly effective, it is useful to establish objective parameters.

              Among the most commonly used in international contracts:

              • an increase or decrease in the price of a raw material beyond a certain threshold (±20% or ±30%)
              • an increase in transportation or logistics costs within certain limits;
              • significant fluctuations in the exchange rate beyond a specified range;
              • the introduction of tariffs or trade restrictions

              These parameters, linked to tolerance ranges, allow the parties to quickly and unambiguously identify a hardship event.

              Remedies in the Event of Hardship

              An effective clause should also address how to handle the situation.

              The most common solutions are:

              • renegotiation of the contract in good faith
              • apply an automatic price adjustment
              • appointment of an independent third-party expert to determine the new price
              • temporary suspension of the contract
              • right of withdrawal if no agreement is reached

              These tools allow the parties to manage the crisis without resorting to litigation.

              Audit of existing contracts: what to do now

              At this point, the practical question becomes: how should we manage the issue in existing business relationships?

              The first step is to conduct an audit of existing contracts with suppliers and customers.

              1. Introduce comprehensive contracts in new relationships

              If the relationships are governed solely by purchase orders and order confirmations, it is advisable to take this opportunity to draft comprehensive international sales contracts that include:

              • a hardship clause
              • warranty provisions
              • remedies for breach
              • limitations of liability

              2. Update existing contracts

              If the relationship is already governed by a contract, you should check whether a hardship clause exists.

              If not, it may be useful to propose to the other party:

              • a new contract, or
              • a contract addendum dedicated to managing price fluctuations.

              This helps prevent future conflicts and provides both parties with an effective tool to manage potential price shocks along the supply chain.

              Conclusion

              Commodity and energy crises demonstrate how exposed international contracts are to sudden changes in economic conditions. When a contract does not clearly address hardship management, the risk does not disappear; it simply shifts along the supply chain until it settles on the weakest link.

              For this reason, companies operating within international supply chains should view the hardship clause as a strategic tool for managing contractual risk. A well-drafted contract does not eliminate market volatility, but it allows the parties to address it with clear rules, reducing uncertainty and preventing disputes.

              Executive Summary

              The African Continental Free Trade Area (AfCFTA) remains one of the most ambitious integration projects in the world. Yet, several years into its operational phase, it has not (yet) delivered the structural shift many expected. A recent analysis underscores the gap between political momentum and economic reality: implementation remains uneven, the agreement is still used by only a portion of participating states, and non-tariff barriers and infrastructure deficits continue to dominate the cost of doing business across borders.  For Egypt, the opportunity is still real — but it depends less on treaty headlines and more on enabling conditions: trade logistics, customs efficiency, regulatory convergence, and competitive industrial capacity. 

              Looking Back: The Promise of a Single African Market

              When the AfCFTA was launched, expectations were understandably high. A continent-wide trade framework was supposed to reduce tariffs, facilitate trade in goods and services, and strengthen regional value chains — with the broader goal of moving African economies up the value ladder.

              In my 2022 article, I asked whether AfCFTA could become a game changer for Egypt, given Egypt’s industrial base, strategic geography, and the potential to diversify export markets beyond traditional partners. (For background, see the earlier article here”).

              The Reality Check: Intra-African Trade Remains Structurally Weak

              Several years later, the interim assessment is sobering. As the Frankfurter Allgemeine Zeitung (FAZ) recently put it, AfCFTA is not a “game changer” yet, and only about half of member states currently meet the practical prerequisites to trade under the agreement.

              A deeper reason is structural: no other world region trades so little with itself, and while statistics may undercount informal cross-border flows (especially in food), the overall picture remains unchanged.

              Trade integration cannot deliver transformative outcomes if production, logistics, and institutions do not support scale.

              Implementation Has Been Slow — and Often Symbolic

              Operationalisation did not start with full-scale liberalisation. Instead, the AfCFTA began with a pilot approach: the Guided Trade Initiative (GTI) launched in October 2022, initially with eight states, later joined by additional countries, including Nigeria and South Africa by spring 2025.

              The GTI created valuable learning effects, but it also underlined a key point: early progress was often presented through symbolic deals, while product coverage and volumes remained limited. FAZ highlights that only selected goods could be traded duty-free and that key sectors remained constrained for a long time due to missing or unresolved technical rules.

              A pilot, however, cannot substitute for full operational certainty — the kind businesses need to restructure supply chains and invest.

              Tariffs Are Not the Main Barrier — Trade Costs Are

              AfCFTA is frequently discussed in terms of tariff liberalisation. Yet, evidence suggests that the largest gains do not come from tariffs but from reducing non-tariff barriers and improving trade infrastructure.

              FAZ points to a central reality: tariffs tend to add around 20–30% to intra-African trade costs, whereas non-tariff costs can be far higher — driven by bureaucracy, lack of harmonised standards, inefficient border processes, and transport barriers.

              This is the crux: even with reduced tariffs, trade will not expand meaningfully if goods still cannot move cheaply, quickly, and predictably.

              Integration Complexity and Distributional Politics

              Africa’s integration landscape is shaped by multiple overlapping regional economic communities and trade regimes. This creates legal and administrative complexity — often described as an integration “spaghetti bowl.” FAZ notes the challenge of coordination and the continued fragmentation of rules.

              There is also a political economy dimension. Intra-African trade is heavily influenced by a small number of larger economies — and the distribution of benefits matters. FAZ highlights the dominance of major players (notably South Africa) and the concern that tariff liberalisation alone may entrench existing industrial advantages.

              Where governments expect asymmetric outcomes, resistance often takes the form of delay, narrow implementation, or persistent non-tariff barriers.

              What This Means for Egypt: The Opportunity Is Real — But Conditional

              Egypt’s strategic case for AfCFTA participation remains strong: industrial potential, geographic location, and the opportunity to access and shape growing markets. But the experience so far suggests that the treaty text alone does not generate trade flows.

              For Egypt’s private sector, the decisive factors are practical:

              • predictable and efficient customs clearance and border procedures,
              • logistics corridors and port efficiency,
              • regulatory convergence (standards, certification, compliance),
              • stable access to trade finance and payments,
              • competitive energy and production conditions for manufacturing and processing.

              AfCFTA can support these developments — but it cannot replace them.

              The “Game Changer” Pathway: What Must Happen Next

              FAZ concludes that AfCFTA will only become truly impactful if it is paired with the fundamentals: major infrastructure investment, stronger production and processing capacity, and a credible industrial policy.

              At the same time, Africa faces a classic chicken-and-egg problem: without development there is limited investment appeal; without investment there is limited development.

              For Egypt and its partners, a pragmatic strategy would be to:

              1. treat AfCFTA as a platform for real trade-cost reduction, not only tariff debates;
              2. focus on a limited number of scalable corridors and sectors where regional value chains can realistically grow;
              3. strengthen implementation capacity so that preferences become usable for firms — especially SMEs;
              4. enhance legal certainty and dispute resolution reliability for cross-border commerce.

              Conclusion

              AfCFTA remains a landmark achievement in terms of political commitment. But as of today, it has not yet been the “game changer” many hoped for.

              For Egypt, the key question is no longer whether AfCFTA is visionary — it is. The question is whether governments and businesses can translate it into lower real trade costs, higher competitiveness, and bankable cross-border transactions. If those enabling conditions improve, AfCFTA’s promise can still become commercial reality.

              After “Liberation Day,” many foreign companies offered discounts to American importers to help them offset the tariffs. A few months later, the US Supreme Court declared the „reciprocal“ tariffs unlawful, but on the same day, President Trump announced new tariffs. In this article, we provide a practical overview of how to handle various scenarios, shifting from a reactive, unstructured approach to deliberate management of price volatility and trade flows caused by the introduction, adjustment, and removal of tariffs.

              Tariff Sharing agreements

              For a long time, the question has been straightforward: who absorbs the extra customs cost? The exporter? The importer? Both? The question remains important, but today it is incomplete.

              The new scenario, in light of the recent ruling by the US Court of Justice on March 20, 2026, is: what happens if that duty is then canceled and refunded? If the cost was shared between the parties, the benefit of the refund must follow a consistent logic. In the absence of a clear agreement on this point, however, there is a risk of economic misalignment that could compromise the commercial relationship.

              Let’s imagine an Italian winery that sells its products to a US importer. Following the introduction of reciprocal duties, the parties have decided that the exporter will grant an extraordinary discount of 7.5%, explicitly motivated by the need to share the impact of the duty. The commercial relationship continues, volumes remain stable, and the importer avoids passing on the entire increase to the end customer.

              As a result of the Supreme Court ruling (or, in the future, another ruling or administrative decision), the importer obtains a refund of the duties paid during that period.

              If no formal agreements have been made on this point and the documentation refers generically to a „commercial discount“ and says nothing about reimbursement, the situation afterward may be difficult to reconstruct and, above all, could lead to commercial tension. As a result, a positive development (the cancellation of the duty and the right to reimbursement) becomes a problematic factor that jeopardizes the relationship.

              Is the exporter entitled to a refund of the discounts granted to mitigate the duties?

              In the absence of a different agreement between the parties, the right to reimbursement belongs to the party who paid the duty, i.e., in most cases, the importer. Therefore, there is a risk that the importer will enjoy a double benefit (the discount and the duty refund), while the exporter will get nothing.

              For this reason, it is essential that the parties do not limit themselves to negotiating prices and discounts, but also establish the consequences of the adoption, modification, or revocation of duties on the contract, including any refunds.

              To achieve this, the first step is to accurately classify and document the discounts granted. If only a „commercial discount“ appears in emails, commercial orders, credit notes, and invoices, it will be harder to later argue that this discount was actually an extraordinary, temporary contribution related to the duty. Conversely, if the documentation and contract specify that it is a tariff sharing or tariff mitigation measure, identifying the amounts to be refunded after the fact becomes much simpler.

              The goal is to create a clear view of the trend in discounts and payments so that, if needed, financial flows can be adjusted to align with the original terms of the agreement: if the exporter has helped cover a cost that then, in whole or in part, does not end up materializing, they will be eligible for a refund of the contribution paid.

              The contract will therefore include, in addition to the Tariff Sharing clause, a Tariff Reimbursement Allocation clause, which states that if the importer receives a refund, credit, or any other economic benefit related to the duty for which the exporter has granted a discount, the importer must return the corresponding portion of the benefit to the exporter in full. or proportionally, depending on how the parties intend to distribute risk and incentive.

              Importer’s responsibility to seek reimbursement

              It is unclear whether, in the case of US reciprocal duties, importers can simply file an administrative claim to get a refund or if legal action will be required. The latter seems more probable.

              Generally, obtaining a duty refund involves action, deadlines, documentation, and coordination with brokers and customs consultants. In most cases, the entity controlling the process is the importer (or someone acting on their behalf).

              This raises a sensitive but very real issue: if the importer knows that they will have to invest time and money to obtain a refund, only to then have to share the benefit with the exporter, their incentive to take action may be reduced. To prevent this inertia  the contract should contain an express obligation to take action, set out as a duty of best efforts or commercially reasonable efforts.

              For example, the contract should specify that the importer must inquire about the conditions and time limits of the process, keep relevant documentation, regularly inform the exporter about the progress of the initiatives, and not unilaterally waive or reduce the claim if it affects the exporter’s economic rights.

              Preventive Agreements on Litigation and Cost Allocation

              When reimbursement involves a lawsuit or structured legal action, the obstacles are organizational and financial: who decides if and when to proceed, who selects the lawyers, who pays the costs upfront, how the net recovery is divided, and who has the final say on a settlement. This generally applies to all contracts, not just this case: dispute resolution methods must be addressed and agreed upon before the problem arises.

              Otherwise, the dispute resolution process risks becoming a secondary improvised negotiation at the worst time — when the parties are already under pressure from margins, cash flow, and regulatory uncertainty. As a result, it becomes much harder to reach an agreement.

              How to handle new tariffs and their potential cancellation

              To safeguard against uncertainty, the agreement should be organized into two stages.

              • The first stage regulates the immediate impact of the change in scenario, for example, the introduction of a new tariff or its increase (renegotiation, cost sharing, automatic adjustment : I discussed this in this article).
              • The second stage manages the possible „rollback“ (right to reimbursement, process, allocation criteria).

              This approach has a clear benefit: it does not force the parties to discuss every time the tariff regime changes or a decision to cancel tariffs is made. Instead of reacting to market changes, a tool is adopted to manage potential scenarios, which is much more resilient commercially and easier to oversee, as the rules have already been agreed upon.

              This allows the impact of duties to be regulated not as an extraordinary variable, to be agreed upon on a one-time basis, but as a structural, adaptable phenomenon that could last a long time.

              This is why it is crucial to know how to draft contracts that cover both the current situation and potential changes, including any refunds.

              Conclusion: Three practical steps for companies exporting to the US

              The first is to agree on the consequences for the contract of the introduction of a new duty, increasing it, or revoking it (renegotiation, cost sharing, automatic price adjustment, right to share the refund).

              The second is to clearly document any discount granted to offset a duty. If it remains a generic „commercial discount,“ the right to a refund if reimbursement occurs will be much harder to enforce.

              The third step is to determine what happens if the duty is canceled or revoked: the importer’s responsibility to take action to get a refund, manage the administrative process or litigation, how to divide costs, who oversees the activities of consultants and lawyers, and how the recovered funds will be allocated.

              How do you approach negotiating a trade agreement with China?

              Based on my experience, let’s examine the issues to be addressed and the main questions to ask, taking the negotiation of a trade distribution agreement as a practical example.

              Let’s start with the first issue that is important to clarify.

              Nice Business Card – But Who Is This Guy?

              Business cards, websites, printed or digital brochures, presentations, and any other materials shared in English have no official value in China.

              The company name of the counterparty and the first and last names of people representing it or acting on its behalf, written in English, are only fictitious names.

              To be certain of the company’s data and the identity of the persons, it is necessary to ask for the information in Chinese, with particular reference to the company’s business license (equivalent to the Companies House or Chamber of Commerce’s excerpt), from which the name, corporate purpose, registered and paid-up share capital, and the name of the legal representative can be inferred.

              The data can then be verified by accessing the portal of the State Administration of Industry and Commerce (SAIC) of the province where the Chinese party is based.

              This first verification is essential to ensure that you do not waste time or even run into scams (here’s an in-depth article on Legalmondo’s blog).

              If You Don’t Own Your Trademark, Someone Else Will – and Charge You for It

              Trademark First, Trade Later. China operates on a first-to-file system for trademarks, which means that the first person or company to register a trademark – not necessarily the original creator or most famous user – gains the legal rights to it. This creates a serious risk: if you haven’t registered your trademark in China, someone else might do it before you, and then either use it freely or demand a hefty ransom to give it back. Even high-profile figures like Elon Musk and Michael Jordan have been entangled in costly and protracted disputes with Chinese trademark squatters. In many cases, getting the mark back is highly complicated, and sometimes legally impossible.

              To avoid this, register your trademarks early, even before entering the Chinese market. File directly with the China Trademark Office (CTMO) and don’t stop at the English version — consider registering a Chinese character version as well, since that is how your brand will often be known locally.

              Once that base is covered, clearly state in your contract that your Chinese partner is not allowed to file a registration of any of your trademarks in China, in Latin or Chinese characters, and that he will use trademarks and IP rights in strict conformance to the contract and your instructions.

              For a deeper dive into how to effectively protect your IP rights in China, check out our detailed article on the Legalmondo blog.

              Contracts can wait. First, get on the same page

              When negotiating with a Chinese partner, it’s often a mistake to begin the conversation by exchanging contract drafts. Instead, focus first on the substance — the relationship’s commercial and technical terms. Using a clear checklist of key discussion points (such as products, pricing, delivery terms, technical standards, after-sales support, exclusivity, duration, payment terms, etc.) helps ensure that both sides are aligned on what really matters. Take detailed notes and keep minutes of the discussions, especially where and when consensus is reached, and make sure those minutes are circulated and expressly agreed upon. Once substantial agreement has been achieved on the main terms, this memo can then be handed over to your lawyer, who will translate the business understanding into clear and coherent contractual language. This approach saves tons of time, as it helps avoid unnecessary back-and-forth on legal language before the core deal is in place.

              Think Your NDA Covers You in China? Think Again

              Yes, they are—and often underestimated. A well-drafted Non-Disclosure Agreement (NDA) is essential when the parties plan to exchange confidential information, such as technological know-how, commercial strategies, supplier data, or client lists. Especially in the early phases of negotiation or cooperation, before a main contract is signed, an NDA helps protect intellectual and business assets.

              However, as with all contracts in China, a generic NDA template copied from other jurisdictions will likely be of limited use. To be truly effective, the NDA must be adapted to the specifics of the Chinese legal environment. This includes ensuring that it is enforceable in China: the NDA should include the proper dispute resolution mechanism (see below on why you should consider applying Chinese law and litigating in China), and it must specify clear, valid, and proportionate penalties for breach. In Chinese practice, stating specific contractual penalties (liquidated damages) is often more effective than vague references to compensation, as courts and arbitrators in China tend to enforce these more reliably if they are reasonable.

              While a good NDA is useful, it often falls short in China’s manufacturing and sourcing landscape. This is where the NNN Agreement – standing for Non-Disclosure, Non-Use, and Non-Circumvention – becomes critical. Unlike standard NDAs that primarily focus on confidentiality, an NNN Agreement is designed to address the unique risks of doing business in China. It prevents the recipient from not only disclosing confidential information but also from using it for their benefit or bypassing the disclosing party to work directly with suppliers, clients, or partners. Which, in China, is a very real risk.

              This broader scope is vital when dealing with Chinese manufacturers or intermediaries, who may otherwise be tempted to replicate products or contact customers directly or through third parties. As seen with the NDA, also the NNN Agreement must be drafted in Chinese, governed by Chinese law, and enforceable in Chinese courts -otherwise, it may offer little real protection.

              Joint venture? Easy, Cowboy

              A joint venture is often the first proposal that comes up when negotiating with a potential Chinese partner. It seems appealing: sharing risks and investments, accessing the local market with an ally, leveraging their knowledge and network of contacts. But the reality is often very different from what it appears to be.

              A joint venture is a complex, expensive, and rigid corporate structure that requires significant investments of money, time, and human resources, as well as the ability to continuously manage often divergent interests among the partners. The vast majority of Sino-Foreign JVs have gone wrong, or will go wrong. Or very wrong. First and foremost, because the JV is usually managed by the Chinese partner, and exercising effective control over the company’s operations is a very challenging undertaking.

              Before going down this road, it is essential to ask yourself a few questions: Is the joint venture really indispensable for developing this business in China? (Spoiler: generally, no). Are there less restrictive and risky alternatives, such as a distribution agreement or a licensing agreement? (Yes, almost always). And above all: how well do we really know our potential partner?

              A joint venture should only be considered if it is strictly necessary for the project’s development, after carefully verifying the commercial viability and the reliability of the Chinese partner, and ensuring the ability to maintain effective control over the JV’s operations.

              It is better to start with simpler and more flexible forms of collaboration to test the market and the relationship with the other party before committing to such a demanding investment. Otherwise, the mirage of the joint venture risks turning into a nightmare that can be very costly.

              Memorandum of Understanding: Where Good Intentions Become Bad Contracts

              A Memorandum of Understanding (MoU) is a helpful tool at the early stage of a commercial relationship. It serves as a roadmap for future negotiations, where the parties outline the main principles and intentions that will guide the drafting of the final agreements. When used correctly, an MoU can significantly facilitate negotiations by ensuring that both sides commit to negotiating the agreement in good faith and share a common understanding of key points such as pricing models, territorial scope, exclusivity, milestones, budget, or performance expectations.

              However, an MoU must be used for what it is: a preparatory document, not a binding contract. Care must be taken to avoid ambiguity and unintended commitments. The text should clearly specify that the parties remain free to conclude – or not – the final agreements and which clauses are non-binding – such as the commercial framework or indicative timelines – and which provisions are binding, typically confidentiality, exclusivity during the negotiations (if agreed), governing law, and dispute resolution. A poorly drafted MoU, which includes overly precise and complete terms, can be misinterpreted as a final agreement, creating unnecessary legal risk. So yes, MoUs are valuable – but only when used correctly. If you’d like to know more, go deeper by reading this article.

              Bad Drafts, Big Headaches, Poor results

              Draft agreements used in China are often copied and pasted from incomplete, superficial, poorly organised templates written in bad English, which often do not match the Chinese version of the contract.

              Correcting and integrating these drafts is complicated and more time-consuming than starting from a good template, with suboptimal results.

              It would be better to propose a consistently constructed text and ask the other party to propose any changes and additions to this draft.

              Your Western Contract Template Won’t Work Here

              Even if an English-language contract is perfectly valid, there are many reasons why using contract templates built for other countries in the Chinese market is inadvisable.

              The first is the fact that Anglo-Saxon-based agreements, such as those for the U.S., refer to a common law system (which is based on judicial decisions and case law precedents) that is very different from that of civil law countries (such as China and Italy), which derives from the Roman legal tradition, based on a codified set of written laws.

              It follows that the layout of an agreement on the Anglo-Saxon model is different, much more detailed, and wordy than that of a typical agreement based on a civil law system. Since contract negotiations in China are generally lengthy and complex, working on redundant and complicated text at the outset does not help.

              If we stick to the example of a distribution contract, it should be added that it is advisable to apply Chinese law to provide for arbitration based in China (e.g., at CIETAC) or in Hong Kong or Singapore (third countries, where, however, the costs of the procedure increase significantly) as the mode of dispute resolution. So, the contract should be built on a model that conforms to the law that will apply to the relationship.

              Home Court Advantage Won’t Help You in China. In fact, quite the opposite

              This is a typical point of disagreement in the negotiation of an international contract: the parties aim to have the law of their own country apply, and to stipulate that any disputes be adjudicated by their domestic courts.

              In our case, insisting on the application of Italian (or any other foreign) law and state court is not a good idea: it should be considered, in fact, that a distribution agreement is carried out, for the vast majority, in the country where the distributor operates and where the products are sold (in our case, in mainland China).

              In disputes, the parties‘ (particularly the manufacturer’s) interest is to obtain a quick decision by the adjudicating body, especially if situations requiring immediate protection (such as unfair conduct or counterfeiting of trademarks and patents by the distributor) are ongoing.

              None of this is possible if one goes to an Italian judge (with lengthy litigation time and the need then for a complex and costly process to recognise and enforce the decision in China); on the contrary,  an arbitration in China, applying Chinese law, allows one to reach a decision quickly (on average 6-9 months) and, if necessary, also to obtain urgent measures to stop any unfair conduct.

              Chinese Law Isn’t a Black Box (If You Know What You’re Doing)

              The lawyer assisting you should know it.

              Therefore, it is not a leap in the dark, and one should not fear surprises.

              In addition, it should be remembered that an agreement is primarily based on the covenants that the parties have written in the contract; therefore, if the contract has been well drafted, the rules to be applied are clear.

              Finally, if we consider distribution agreements, keep in mind that they are a framework contract, within which a series of separate product sales contracts are concluded. If both countries are contracting parties to the 1980 Vienna Convention on the International Sale of Goods (CISG), then the uniform, clear, and balanced rules of the convention apply automatically, just don’t opt out!

              One Contract, Two Languages

              The contract is also valid in English only.  However, it is undoubtedly advisable to draft a Chinese version with facing text.

              This is for several reasons: first, it prevents the Chinese party from having to arrange for a translation of the text during negotiations for its own internal use (top managers often do not speak English), thus slowing down the various steps of negotiations.

              Also, to ensure that the Chinese side fully understands the agreement’s content and to avert misunderstandings (real or instrumental) about the interpretation of certain covenants.

              Finally, it should be borne in mind that if the contract were later to be used before a court or administrative authority in China, the only language admitted would be Chinese; for this reason, it is better to have already a text agreed and signed by the parties in Chinese as well, rather than having to prepare a unilateral translation later.

              Sign. And chop

              Does the contract need to bear the company’s official stamp? Yes, and this point is absolutely crucial. In China, a company’s official „chop“ (the red-ink stamp) is equivalent to a signature and is conclusive proof that the person signing the contract has the authority to represent the company. A signature alone, even from someone with an important-sounding title, may not be sufficient if it is not accompanied by the official chop. Without it, the contract might later be challenged or even considered void. Before signing, always verify that the stamp used matches the one registered with the company’s business license or official corporate records, and ensure that the stamp is applied on every page or at least on the signature page, in line with local practice.

              Don’t Let Your Contract Collect Dust

              Things change fast, especially in China. New products are added, market conditions evolve, people leave the company, new competitors emerge on the horizon, and so on. Companies constantly adapt to the new conditions, and so must the contract.

              Any change in the relationship should be formalized correctly. To avoid misunderstandings and disputes, it’s advisable to include an integration clause in the contract, specifying that any amendments or additions will only be valid if agreed in writing, signed by the parties’ authorized representatives, and annexed as an addendum to the original agreement.

              It’s not enough to include this clause – you must follow it consistently. If things change, agreements reached verbally, through Wechat messages, and through email exchanges may make things complicated if they are not formalised adequately according to the procedure set out in the original contract.

              If you’d like to go deeper, check out this article.

              Roberto Luzi Crivellini

              Rechtsgebiete

              • Schiedsgerichtsbarkeit
              • Vertrieb
              • Internationaler Handel
              • Rechtsstreitigkeiten
              • Immobilien
              Kontakt Roberto

              Schreiben Sie an Roberto





                Legalmondos Datenschutzbestimmungen lesen.
                This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

                Agency and distribution agreements. Phrases to avoid when ending a business relationship without a written contract

                11. Oktober 2025

                • Spanien
                • Agentur
                • Verträge
                • Vertrieb
                • Rechtsstreitigkeiten

                Foreign franchisors entering into franchise agreements in Spain should take careful note of the content of the judgment issued by the Provincial Court of Córdoba on November 20, 2025, and require that the partner(s) and the directors of the franchisee company expressly guarantee and indemnify the payment of any debts arising from the franchise agreement.

                Spanish corporate law establishes the principle of liability for the directors of corporations or limited liability companies when the company is subject to dissolution (for example, due to losses that reduce equity to less than 50% of the share capital) and, despite this, they fail to convene a meeting to adopt corrective measures (dissolution or capital increase).

                In the case of the aforementioned ruling, the franchisor was unable to collect the debt arising from the franchise agreement from the franchisee due to the latter’s insolvency; so it decided to claim that debt from the company’s administrator based on the provision mentioned above, that is, due to the fact that the franchisee company was facing dissolution due to losses and the administrator had not convened a shareholders’ meeting, as was his obligation, so that the shareholders could decide how to resolve the situation.

                The ruling we are discussing from the Court of Appeal of Córdoba upholds the lower court’s decision and dismisses the franchisor’s claim against the sole administrator of the franchisee company, stating that:

                With regard to liability for corporate debts under Article 367 of the Capital Companies Act, the court recognised the existence of the corporate debts, the presence of grounds for dissolution, the breach of the legal obligations by the corporate administrator, and his liability, but found that a ground for exoneration from liability existed in accordance with the doctrine of “known risk.” Thus, it was noted that the plaintiff is a franchisor and X. S.L. was the franchisee, and it was evident from the electronic communications that the franchisee was under constant monitoring and the franchisor was aware of the risk involved in the operations, halting the shipment of goods (clothing) as soon as the limits of the guarantees granted were exceeded, meaning the plaintiff voluntarily assumed the risk. For all these reasons, the claim was dismissed.

                In conclusion, and in light of the foregoing, the present franchise relationship and its conduct allow us to consider that it has been established that the franchisor (creditor) had greater knowledge of the franchisee’s (debtor’s) financial situation, beyond the information appearing in the annual accounts filed with the Commercial Registry, as it was the franchisee’s primary supplier. And this knowledge and control of the debt by the franchisor (through the increase in orders) justifies the exoneration of the corporate director’s liability for corporate debts under Article 367 of the Capital Companies Act, which leads to the dismissal of the appeal

                The legal theory or principle of Known/Accepted Risk, to which the judgment refers, holds that harm caused to a third party, with or without a contractual relationship in place, is not considered unlawful if the victim was aware of the risk and voluntarily assumed it.

                This doctrine was initially developed within the framework of tort liability: whoever engages in a risky activity and reaps its benefits must bear its negative consequences, that is, the risk—(cuius commodum, eius incommodum).

                However, case law has extended the application of this theory to the field of contractual liability, as demonstrated in the judgment under discussion.

                Therefore, since the plaintiff was aware of the defendant’s financial situation and solvency—having “monitored” its activity as a franchisor—and despite this, decided to maintain the contract’s validity, thereby increasing the debt, the ruling holds that the franchisor assumed the risk, which constituted grounds for exonerating the administrator from liability. However, more concerning than the above is that this “known risk” theory could be  considered applicable to the liability of the franchisee company itself, which could be exonerated from liability based on the franchisor’s monitoring of its activities.

                The conclusion of all the above is that, based on this application of the known risk theory, franchisors may face difficulties in claiming debts owed by the franchisee company from its directors in the event of the company’s insolvency; therefore, it is highly advisable that, when signing the franchise agreement, a joint and several guarantee for the franchise’s potential future debts be required from its directors and partners, which, moreover, is a fairly standard practice.

                In this way, the objection based on the theory of known risk would not come into play.

                Vietnam has been added to the EU list of non‑cooperative jurisdictions for tax purposes (Annex I), following the Council’s update of 17 February 2026.

                For EU companies buying goods and services from Vietnam, this is not an outright ban on trade, but rather a signal that substantially heightened tax governance scrutiny, documentation expectations, and (in some cases) more demanding payment execution will follow in the months ahead. The EU listing process is designed less to “name and shame” and more to encourage positive change through cooperation and dialogue, but once a jurisdiction is placed on Annex I, EU Member States implement “defensive measures” that can materially affect tax treatment, withholding obligations, and audit intensity for Vietnam-linked transactions.

                What the EU decision does (and does not) do

                The EU blacklist is a tax‑governance instrument: it does not prohibit EU businesses from importing goods from Vietnam or procuring Vietnamese services, and it does not alter Vietnam’s domestic tax regime, corporate income tax rules, withholding tax framework, or investment policies.

                At the same time, the EU can deepen cooperation with Vietnam on the political and economic track while still applying tax‑governance pressure through listing mechanisms, so businesses should be prepared for a “partnership plus scrutiny” environment rather than expecting the two to be perfectly aligned.

                In January 2026, the EU and Vietnam upgraded their relations to a Comprehensive Strategic Partnership, framed as a platform to strengthen cooperation across areas such as trade and investment, climate/energy, sustainable development and digital transformation-a signal that the blacklisting is a technical compliance tool, not a diplomatic rupture.

                The ideological paradox: a Socialist Republic on a tax-haven list

                Vietnam’s presence on the blacklist is striking when viewed in its broader political context. The EU blacklist was conceived after major tax-transparency scandals (the Panama Papers and LuxLeaks) to address jurisdictions that facilitate offshore structures or fail to meet information-exchange standards. In the Western imagination, “tax haven” connotes liberal microstates or offshore centres, yet Vietnam, governed by a Communist Party, now sits on the same list. This reflects the reality of Vietnam’s hybrid economic model: politically socialist, but economically pragmatic since the Đổi Mới reforms of the late 1980s, with selective tax incentives for special economic zones, high-tech investments and priority sectors that, in certain cases, can significantly reduce the effective tax burden for foreign investors. The EU’s concern is not Vietnam’s headline corporate tax rate but rather-at this stage-the absence of adequate exchange-of-information infrastructure, though the architecture of its preferential regimes has also attracted scrutiny in the past. The listing is a technical compliance issue, not an ideological one. 

                Why Vietnam was added: the listing criteria and timeline

                Vietnam has been subject to EU scrutiny since the very first iteration of the EU list in December 2017, when it was placed in Annex II (the “grey list”) alongside jurisdictions that have committed to reform but are not yet fully compliant. In October 2025, Vietnam was removed from Annex II after fulfilling its commitments on country-by-country reporting (CbCR), and appeared, at that point, to be on the path to full compliance. However, shortly afterwards-in November 2025-the OECD Global Forum published its peer review and rated Vietnam “Non-Compliant” with respect to the standard on Exchange of Information on Request (EOIR), a separate compliance area from CbCR, finding that further reforms remained outstanding and that improvements in the CbCR exchange framework were not expected before 2027. This OECD finding directly triggered the February 2026 move to Annex I-an escalation from the grey list to the blacklist, bypassing any intervening period of full compliance.

                The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), The three core listing criteria against which Vietnam was assessed are: Criterion 1 (Tax transparency), requiring compliance with AEOI and EOIR standards and membership of the Multilateral Convention on Mutual Administrative Assistance in Tax Matters; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.; Criterion 2 (Fair taxation), requiring no harmful preferential tax regimes and adequate economic substance rules; and Criterion 3 (Anti-BEPS measures), requiring implementation of OECD anti-BEPS minimum standards including country-by-country reporting. Vietnam’s shortfall was concentrated in Criterion 1, specifically the EOIR standard, which concerns the country’s practical capacity and procedural framework for responding to foreign tax authorities’ requests for information.

                Vietnam’s response and the path to delisting

                Vietnam’s Ministry of Foreign Affairs responded publicly within days of the listing, defending the country’s tax transparency record and stating that the government is implementing a national action plan to follow OECD recommendations and expand tax cooperation with partners including the EU. Vietnam expressed readiness to engage with European authorities to ensure more objective and comprehensive assessments, and to promote cooperation for shared development and prosperity. Practitioner commentary suggests a concrete roadmap is achievable: with legislative amendments (decrees and circulars on EOIR procedures), the establishment of a dedicated EOIR unit, publication of enforcement statistics, and active technical engagement with the EU Code of Conduct Group from now through September 2026, Vietnam could realistically target removal from Annex I at the next EU review cycle in October 2026, although this timeline is ambitious and delisting is by no means guaranteed. The key point for EU businesses is that, while the listing may be relatively short-lived if Vietnam acts decisively, companies should not delay compliance preparations in reliance on early delisting-a proportionate, risk-based response is more appropriate than a wholesale restructuring of Vietnam-linked supply chains.

                How different payment types are affected in practice

                Goods (imports) are often the most straightforward in substance terms because there is usually a clear chain of documents: purchase orders, shipping documents, customs import paperwork, delivery notes, inspection/acceptance records and matching invoices.

                The risk uplift for goods is typically not about whether the purchase is real, but whether the overall supply chain and pricing remain coherent under scrutiny-for example, whether margins and intercompany arrangements around the import flow make commercial sense and are consistently documented.

                Services (outsourcing, consulting, IT development, marketing, support) tend to attract more questions because “what was delivered” is harder to evidence than a shipped product.

                If your EU entity pays a Vietnamese provider for services, expect to need a well‑organised evidence pack: a clear scope of work, time records or milestones, deliverables (reports, code repositories, tickets), acceptance sign‑offs, and a pricing rationale that matches the level of skill and effort involved.

                Royalties and IP-related payments (software licences, trademarks, know‑how, technology access) are particularly sensitive because they combine valuation complexity with cross‑border tax characterisation questions.

                Expect pressure-testing of (i) who truly owns and controls the IP, (ii) the contract chain and sublicensing rights, (iii) how the royalty rate was set using benchmarking or comparable arrangements, and (iv) whether the payment is genuinely for IP rather than a disguised service fee.

                Intragroup charges (management fees, shared services, cost recharges) are commonly the first area where tax authorities and counterparties ask for “benefit” evidence and allocation logic.

                Where Vietnam sits inside a group value chain, be ready to show why a charge exists, how it was calculated, how the recipient benefited, plus consistent intercompany agreements and transfer pricing support.

                Financing and treasury flows (interest, guarantees, cash pooling, factoring, trade finance) trigger the most intensive technical review because they involve both tax outcomes and financial crime/compliance sensitivities.

                Even where the structure is legitimate, these flows are more likely to be escalated internally for enhanced review and may require more supporting documentation before execution.

                How European banks may respond (and what that looks like in practice)

                Banks in the EU operate under a risk‑based approach to financial crime and compliance, and they may apply de-risking decisions, meaning they can choose to restrict or exit relationships or transaction types they view as exceeding their risk appetite or being operationally too costly to monitor. EU supervisory frameworks acknowledge that de-risking exists and call for proportionate, evidence-based risk assessments rather than indiscriminate blanket exclusions, but in practice banks have significant discretion.

                For an EU company initiating a bank transfer to a Vietnamese counterparty, the following discretionary measures can arise in practice, even where the payment is entirely lawful and commercially routine.

                A bank can pause execution and request additional documents before releasing funds, seeking comfort on the purpose and legitimacy of the transaction under its internal controls.

                Typical requests include the underlying contract or statement of work, invoices, proof of delivery or performance, an explanation of business purpose, and information on the beneficiary’s beneficial ownership or corporate structure.

                A bank can route the payment through manual review queues rather than straight-through processing, particularly for first-time beneficiaries, unusually large amounts, or payments with vague narratives that do not clearly describe the purpose.

                This creates operational knock-ons: late supplier settlement, goods held pending payment confirmation, or service suspension where the vendor operates on strict payment triggers.

                A bank can impose internal conditions as part of its customer-specific risk controls-for example requiring richer payment details, stricter invoice descriptors, or pre-approval workflows for Vietnam-corridor payments.

                A bank can decline to process specific transactions or decide to exit certain corridors, client types, or business models entirely as a risk-management choice. German financial institutions are described as applying enhanced due diligence, requiring full transparency of transaction purpose and ownership for Vietnam-linked payments.

                Where a payment is declined, the practical solution is often to adjust the execution setup-alternative banking channel, revised documentation pack, or modified payment mechanics-while keeping the underlying commercial relationship intact.

                EU companies are advised to develop a “Banking Compliance Pack” for Vietnam-corridor payments: a pre-assembled set of documents (contract, invoice, proof of delivery/performance, business rationale memo, and beneficial ownership information) that can be submitted proactively or in response to bank queries within hours rather than days.

                Non-tax defensive measures and EU funding implications

                Beyond tax measures, being on the EU blacklist triggers non-tax consequences that affect Vietnam’s economic relationship with the EU more broadly. EU investment programmes cannot channel funding through entities located in Vietnam, because using such an entity contradicts the core legal purpose of these funds, which are designed to promote good governance, transparency, and the fight against illicit financial flows. Affected funds include the European Fund for Sustainable Development (EFSD/NDICI), which de-risks major investments in areas like energy and digital; the InvestEU programme (which replaced the former EFSI); and the External Lending Mandate (ELM), which provides EIB loans for major infrastructure outside the EU. In addition, the General Framework for STS securitisation imposes separate restrictions on the use of entities in blacklisted jurisdictions within securitisation structures. For Vietnamese entities and their EU partners working on donor-funded or ESG-driven projects, this can be a significant constraint, as subsidiaries and other businesses in Vietnam may be cut off from these sources of EU financing.

                DAC6 reporting and public country-by-country reporting

                Cross-border arrangements involving Vietnam are now subject to heightened DAC6 scrutiny. In particular, Hallmark C.1(b)(ii) may be triggered where a deductible cross-border payment is made by an EU-based associated enterprise to a tax resident in Vietnam, subject to Member State-specific implementation of the main benefit test and other conditions. Large multinationals (consolidated revenue of EUR 750 million or more in each of the last two fiscal years) must also prepare and publicly disclose a Public Country-by-Country Report. Under the EU Public CbCR Directive, Vietnam activities must be reported separately-not aggregated as “Rest of the World”-disclosing a list of all consolidated subsidiaries, description of activities, number of full-time equivalent employees, revenues (including related-party revenue), profit or loss before tax, income tax accrued and paid, and accumulated earnings. For FY 2025 and FY 2026, Vietnam information is already reportable separately by affected multinationals.

                Country notes (alphabetical)

                Belgium: Belgium applies non-deductibility of costs, CFC rules, and participation exemption limitations linked to both the EU list and certain domestic criteria. A critical Belgian-specific rule is the reporting obligation for payments made to entities in blacklisted jurisdictions where the aggregate of such payments exceeds EUR 100,000 in the taxable period; once this threshold is met, each such payment must be reported in the annual tax return, and any payment that is not reported, or that cannot be justified on specific grounds, is not deductible. Belgium follows a dynamic approach to the EU list, meaning EU list updates take effect automatically without a further domestic step. For Belgian payers, immediate practical priorities are: (i) identifying all Vietnam-linked payment streams above EUR 100,000, (ii) ensuring the reporting mechanism in the annual tax return is in place, and (iii) building the justification file for each reported payment.

                France: France applies all four defensive measures-non-deductibility of costs, CFC rules, withholding tax, and participation exemption limitation-but via a national decree-based list that refers to the EU list while also applying additional French domestic criteria. France follows a static approach, updating its domestic non-cooperative state list through an annual Decree in the Official Journal, with tax consequences applying from the first day of the third month following publication. The last French update took place in April 2025, and at the time of writing (May 2026) no subsequent decree incorporating Vietnam has been published. A further update is expected imminently and will likely include Vietnam. Once Vietnam appears on the French list, key measures include: a 75% withholding tax on interest, royalties, dividends and service fees (counterevidence possible); denial of the participation exemption (counterevidence possible for jurisdictions meeting certain criteria); denial of deductibility of interest, royalties and service fees (counterevidence possible); and a stricter CFC rule under which the burden of proof is reversed and foreign withholding taxes cannot be credited against French CFC income. French payers should monitor the next French decree closely and prepare counterevidence files now so they are ready the moment the decree is published.

                Germany: Germany applies all four defensive measures through the Tax Haven Defence Act (Steueroasen-Abwehrgesetz, StAbwG), linked to the EU list via a Tax Haven Defence Ordinance that is updated once per year, typically at year-end taking into account the October EU list update. The expected sequence for Vietnam is: December 2026-amendment to the Tax Haven Defence Ordinance to incorporate Vietnam; from 2027 (Year 1)-stricter CFC rules and extended withholding tax of 15% (plus a 5.5% solidarity surcharge) apply to income from financing relationships, insurance or reinsurance services, legal and advisory services, and trading of goods and services; from 2029 (Year 3)-denial of the participation exemption activates; from 2030 (Year 4)-denial of deductible business expenses activates. Importantly, Germany’s extended withholding tax can override double tax treaties. The multi-year ramp-up means that immediate German impacts are CFC scrutiny and withholding tax friction on specific payment types, while the broader expense deduction denial will only bite from 2030 onwards-giving German payers time to prepare, but making early documentation investment worthwhile.

                Italy: Italy uses the EU list for monitoring and deductibility purposes under Article 110 TUIR: costs connected with counterparties in Annex I jurisdictions are generally deductible up to “normal value,” while amounts above normal value require evidence of an effective economic interest, and all such costs must be separately indicated in the annual income tax return (Modello REDDITI). Italy’s framework is directly triggered by the EU list, meaning Vietnam’s Annex I status is effective for Italian purposes from the publication of the Council conclusions in the EU Official Journal, without any further domestic implementing step being required.

                For Italian payers, service costs, royalties, and intragroup charges to Vietnam are the most sensitive categories: robust documentation of deliverables, pricing and economic rationale is essential, and accounting teams need to ensure they can cleanly isolate Vietnam-linked costs in the year-end reporting workflow.

                Malta: Malta follows a dynamic approach to the EU list, meaning Vietnam’s Annex I status takes effect automatically in Malta’s tax framework. Malta applies a limitation of the participation exemption on dividend income derived from a participating holding in a body of persons that has been resident in a jurisdiction on the EU list for a minimum period of three months during the year immediately preceding the year of assessment, subject to a counter-evidence exception based on “people functions.” Malta does not apply non-deductibility, CFC, or withholding tax defensive measures against EU-listed jurisdictions as primary tools, so the main Malta-specific concern for holding and investment structures is participation exemption eligibility and substance evidence. For Malta-based groups, the practical response is to keep board materials, contracts, and commercial rationale tightly aligned, and to prepare for more intensive counterparty due diligence (beneficial ownership, substance, and tax residency) from EU customers and financial institutions.

                Netherlands: The Netherlands applies a 25.8% conditional withholding tax on interest, royalties, and (since 1 January 2024) dividends paid to related entities in EU-listed jurisdictions or low-tax jurisdictions, as well as CFC rules with counterevidence possible. The Netherlands follows a static approach: the list applicable for a tax year is based on the EU list as it stood at the end of the preceding year, using the October update as the reference. This means the Dutch 2027 Regulation will include Vietnam only if Vietnam remains on the EU list after the October 2026 review cycle. No withholding tax consequences arise for Dutch payers immediately in 2026 as a direct result of Vietnam’s February 2026 listing, but the October 2026 review date is critical: if Vietnam remains listed, Dutch conditional withholding tax obligations will activate from 1 January 2027. Dutch payers with intragroup dividend, interest, and royalty flows to Vietnam should use the current window to restructure documentation and pricing support and to assess whether existing double tax treaty protections remain effective in light of the conditional WHT mechanics.

                Spain: Spain does not mechanically mirror the EU list, but operates its own domestic list of non-cooperative jurisdictions, which is updated separately and can include or exclude jurisdictions differently from Annex I. Spain applies a static approach, with the list specified in law. The practical implication is that the Spanish domestic tax consequences of Vietnam’s listing depend on whether and when Spain updates its domestic list to include Vietnam, rather than arising automatically from the EU Council’s February 2026 decision. For Spain-based procurement and finance teams, do not assume a one-to-one mapping between EU-list status and Spanish domestic tax outcomes, but do treat Vietnam-linked transactions as higher-scrutiny items from an audit and counterparty due diligence perspective, and invest in cleaner contracting, invoice narratives, and performance evidence for services, royalties, and intragroup charges.

                 

                Practical next steps for EU companies

                1. Map exposures: Identify and quantify all payment streams relating to Vietnamese entities, broken down by payment type (goods, services, royalties, intragroup charges, financing).
                2. Understand your Member State’s rules: Confirm which defensive measures apply in the relevant EU payer jurisdiction, when they take effect (immediately or staged), whether the jurisdiction follows the EU list dynamically or statically, what relief conditions exist, and what documentation is required.
                3. DAC6 readiness: Assess whether Vietnam-linked arrangements trigger DAC6 reporting obligations (particularly deductible cross-border payments between associated enterprises) and ensure reporting infrastructure is in place.
                4. Transfer pricing and substance: Validate intercompany services, royalties and financing arrangements by reassessing pricing, benefit tests and contractual terms; strengthen contemporaneous documentation before year-end.
                5. Public CbCR messaging: If within scope, assess public CbCR disclosure implications for Vietnam operations and align tax, legal, ESG and investor-relations communications accordingly.
                6. Vendor due diligence: Implement or strengthen due diligence on Vietnamese counterparties, including tax residence evidence, beneficial ownership documentation, and substance and economic activity confirmation.
                7. Banking compliance pack: Build a pre-assembled documentation pack for Vietnam-corridor payments (contract, invoice, proof of delivery/performance, business rationale, beneficial ownership information) to address bank queries within hours rather than days.
                8. Monitor the October 2026 review: Track Vietnam’s progress on EOIR reforms and the EU Code of Conduct Group’s October 2026 review cycle. If Vietnam is removed from Annex I in October 2026, Member States that follow a static approach (Germany, Netherlands) will not apply defensive measures to Vietnam in their 2027 rules; France, which also follows a static approach but applies additional domestic criteria, may nonetheless retain Vietnam on its own non-cooperative state list even after EU delisting. The October 2026 outcome is therefore commercially significant for medium-term planning.
                9. Embed internal governance: Install jurisdiction-risk gateways in approval workflows for new entities, contracts, loans, and IP arrangements involving Vietnam, to ensure proper sign-off and documentation from inception.

                Under French Law, franchisors and distributors are subject to two kinds of pre-contractual information obligations: each party must spontaneously inform their future partner of any information they know is decisive to their consent. In addition, for certain contracts – i.e a franchise agreement – there is a duty to disclose a limited amount of information in a document. These pre-contractual obligations are mandatory rules of public policy. Thus, these two obligations apply simultaneously to the franchisor, distributor or dealer when negotiating a contract with a partner.

                Takeaways

                • The information required by the DIP must be fully completed and updated ;
                • The information not required by the DIP but provided by the franchisor must be carefully selected and sincere;
                • Franchisee must be given the opportunity to request additional information from the franchisor;
                • Franchisee’s experience in the economic sector enables the franchisor to considerably limit its exposure to the risk of contract cancellation due to a defect in the franchisee’s consent;
                • Franchisor must keep the proof of the actual disclosure of pre-contractual information (whether mandatory or not).
                • The general information obligation under common law (Article 1112-1 of the French Civil Code) may apply concurrently with the special disclosure obligation provided for under Article L. 330-3 of the French Commercial Code.

                General duty of disclosure for all contractors

                What is the scope of this pre-contractual information?

                This obligation is imposed on all counterparties, for any kind of contract. Indeed, article 1112-1 of the Civil Code states that:

                (§. 1) The party who knows information of decisive importance for the consent of the other party must inform the other party if the latter legitimately ignores this information or trusts its counterparty.

                (§. 3) Of decisive importance is the information that is directly and necessarily related to the content of the contract or the quality of the parties. »

                This obligation applies to all contracting parties for any type of contract.

                French courts have ruled that this general information obligation may apply concurrently with the special disclosure obligation under Article L. 330-3 of the French Commercial Code (see below), answering the question in the affirmative (Paris Court of Appeal, 27 March 2024, no. 22/12665). The scope of the latter has however, been defined by the French Supreme Court (« Cour de cassation ») : only information bearing a direct and necessary link with the subject matter of the contract or the qualities of the parties is subject to the disclosure obligation (Cass. com., 14 May 2025, no. 23-17.948).

                Who bears the burden of proof?

                The burden of proof rests on the person who claims that the information was due to him. He must then prove (i) that the other party owed him the information but (ii) did not provide it (Article 1112-1 (§. 4) of the Civil Code)

                Special duty of disclosure for franchise and distribution agreements

                Which contracts are subject to this special rule?

                French law requires (art. L.330-3 French Commercial Code) the provision of a pre-contractual information document (in French “DIP”) and the draft contract, by any person:

                • which grants another person the right to use a trade mark, trade name or sign,
                • while requiring an exclusive or quasi-exclusive commitment for the exercise of its activity (e.g. exclusive purchase obligation). The quasi-exclusive nature of the commitment is assessed on a case-by-case basis by French courts, independently of the 80% purchase threshold provided for under EU Regulation 2022/720, which is treated merely as an indicative reference.

                Concretely, DIP must be provided, for example, to the franchisee, distributor, dealer or licensee of a brand, by its franchisor, supplier or licensor as soon as the two above conditions are met. French courts have moreover recently had occasion to confirm that the scope of the DIP obligation is not limited to franchise agreements but extends, in particular, to dealership agreements, provided the above-mentioned conditions are met (Paris Court of Appeal, 22 May 2024, no. 22/08672).

                When the DIP must be provided?

                DIP and draft contract must be provided at least 20 days before signing the contract, and, where applicable, before the payment of the sum required to be paid prior to the signature of the contract (for a reservation).

                What information must be disclosed in the DIP?

                Article R. 330-1 of the French Commercial Code requires that DIP mentions the following information (non-detailed list) concerning:

                • Franchisor (identity and experience of the managers, career path, etc.);
                • Franchisor’s business (in particular creation date, head office, bank accounts, history of the development of the business, annual accounts, etc.);
                • Operating network (members list with indication of signing date of contracts, establishments list offering the same products/services in the area of the planned activity, number of members having ceased to be part of the network during the year preceding the issue of the DIP with indication of the reasons for leaving, etc.);
                • Trademark licensed (date of registration, ownership and use);
                • General state of the market (about products or services covered by the contract) and local state of the market (about the planned area) and information relating to factors of competition and development perspective. With respect to the local market, the French Supreme Court (« Cour de cassation ») has held that the franchisor is not required to conduct a market study, but that if one is provided, it must be accurate and verifiable (Cass. com., 18 Oct. 2023, no. 22-19.329).;
                • Essential element of the draft contract and at least: its duration, contract renewal conditions, termination and assignment conditions and scope of exclusivities;
                • Financial obligations weighing in on contracting party: nature and amount of the expenses and investments that will have to be incurred before starting operations (up-front entry fee, installation costs, etc.).

                Beyond the exhaustiveness of the information required under the aforementioned provision, the DIP is subject to a qualitative standard. All information provided — including information provided spontaneously — must be accurate and truthful to ensure that the prospective network member’s consent is fully informed and free from any defect.

                How to prove the disclosure of information?

                The burden of proof for the delivery of the DIP rests on the debtor of this obligation: the franchisor (Cass. Com., 7 July 2004, n°02-15.950). The ideal for the franchisor is to have the franchisee sign and date his DIP on the day it is delivered and to keep the proof thereof.

                The clause of contract indicating that the franchisee acknowledges having received a complete DIP does not provide proof of the delivery of a complete DIP (Cass. com, 10 January 2018, n° 15-25.287).

                The franchisor is subject to a duty to update the DIP until the contract is signed

                In a ruling dated 26 June 2024 (no. 23-14.085 PB), the French Supreme Court held that formal compliance of the DIP at the time of its delivery is not sufficient to exonerate the franchisor from all pre-contractual liability. This position was confirmed by a subsequent ruling of 4 December 2024 (no. 23-16.684).

                These two decisions appear to establish a duty of ongoing updates incumbent upon the network head throughout the entire period between the delivery of the DIP and the execution of the contract. Where significant events occur during that interval — insolvency proceedings affecting network members, major litigation, or structural changes to the network — the network head is required to proactively inform the prospective member. The court then examines whether the failure to disclose such information was liable to distort the candidate’s assessment of the network and, consequently, to vitiate his consent (Cass. com., 26 June 2024, op. cit.).

                A franchisor may therefore not shelter behind the initial regularity of the DIP to discharge its disclosure duty where the network’s situation has materially changed prior to the signing of the contract.

                Sanction for breach of pre-contractual information duties

                Criminal sanction

                Failing to comply with the obligations relating to the DIP, franchisor or supplier can be sentenced to a criminal fine of up to 1,500 euros and up to 3,000 euros in the event of a repeat offence, the fine being multiplied by five for legal entities (article R.330-2 French commercial Code).

                Cancellation of the contract for deceit

                The contract may be declared null and void in case of breach of either article 1112-1 of the French Code civil or article L. 330-3 of the French Code de commerce. In both cases, failure to comply with the obligation to provide information is sanctioned if the applicant demonstrates that his or her consent has been vitiated by error, deceit or violence. In this respect, courts conduct a concrete, case-by-case assessment, taking into account in particular the professional experience and personal due diligence of the distributor: a sophisticated candidate will face greater difficulty in establishing deceit, and his experience in the relevant sector may be sufficient to exonerate the franchisor (Paris Court of Appeal, div. 5 – ch. 11, 26 Apr. 2024, no. 21/13205), even where the information provided was incomplete or inaccurate (Paris Court of Appeal, 20 Jan. 2021, no. 19/03382).

                The path is therefore narrow for the franchisee: he cannot invoke error concerning profitability when it is he who draws up his plan, and even when this plan is drawn up by the franchisor or based on information drawn up and transmitted by the franchisor, the experience of the franchisee who knew the local market may exonerate the franchisor.

                Regarding deceit, Courts strictly assess its two conditions which are:

                • (a material element) the existence of a lie or deceptive reticence (article 1137 French Civil Code), and
                • (an intentional element) the intention to deceive his counterparty (article 1130 French Civil Code).

                Where applicable, the parties must return to the state they were in before the contract.

                Damages

                Although the claims for contract cancellation are subject to very strict conditions, it remains that franchisees/distributors may alternatively obtain damages on the basis of tort liability for non-compliance with the pre-contractual information obligation, subject to proof of fault (incomplete or incorrect information), damage (loss of opportunity of not contracting or contracting on more advantageous terms) and the causal link between the two.

                From Reporting to Governance and Risk Allocation

                Environmental, Social and Governance (ESG) considerations are playing an increasingly influential role in how businesses operate, invest, and manage risk, especially within the European Union, where corporate sustainability and responsibility regulation have been on the agenda in recent years.

                With the adoption of the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD), many companies anticipated a significant shift in compliance. Since then, the EU has introduced simplification measures to streamline reporting and due diligence obligations, reduce the administrative burden, and improve proportionality, particularly for small and medium-sized enterprises (SMEs), while maintaining the core sustainability objectives.

                While opinions may differ regarding the evolution of environmental, social, and governance (ESG) in EU regulation and the subsequent postponements of reporting obligations, regulatory developments appear to have, in practice, supported a shift in perspective. Sustainability is no longer viewed solely as a reporting requirement, but increasingly as a matter of governance, strategy, and risk allocation. This development is welcome, as the regulatory framework’s underlying objective is to advance the green transition, which in turn requires a change in how companies integrate sustainability into their decision-making and operations.

                This focus on sustainability influences businesses of all sizes, including SMEs. Even companies not directly subject to the CSRD or CSDDD anticipate that ESG requirements will be passed down through the supply chain. Many non-reporting SMEs are already embedding sustainability practices, and this trend is likely to continue. In other words, sustainability policies are already affecting companies well before any formal reporting obligations kick in.

                Environmental, Social, and Governance in Contract Architecture

                One of the key means of implementing environmental, social, and governance obligations and objectives in day-to-day business operations is through commercial contracts and the requirements and commitments embedded in them.

                Even where a company itself is not directly subject to extensive reporting or due diligence obligations, corporate sustainability and responsibility expectations flow through the market via contractual relationships. Larger undertakings within the scope of CSRD and, in due course, the CSDDD require contractual assurances, information rights, and cooperation from their business partners, including SMEs operating within their supply chains. As a result, corporate sustainability and responsibility become a question of contractual architecture. Companies must consider not only price mechanisms, liability caps and termination triggers, but also how environmental, social and governance risks and obligations are addressed and allocated between the parties through legally enforceable contractual terms.

                Translating Policies into Binding Obligations

                A typical starting point is the incorporation of a code of conduct or sustainability policies into commercial contracts, often by reference and through an express obligation on the contracting party to comply with them. From a legal standpoint, this raises important drafting questions. Many codes are drafted as high-level public statements. When such policies are converted into contractual commitments, their wording, scope, and hierarchy relative to the main agreement require careful consideration. The obligations must be sufficiently clear to define the parties’ expectations, coherent with other contractual provisions, and proportionate to the commercial relationship. The obligations must also be capable of practical implementation and effective monitoring in the context of the agreement.

                In practical terms, this may mean requiring the supplier to comply with specific labour standards, maintain documented environmental management procedures, report on emissions data, ensure traceability of key raw materials, or allow reasonable access for audits. Clearly defining what is expected, how compliance is demonstrated, and what consequences follow from non-compliance is essential for the clause to function effectively. Otherwise, clauses that appear comprehensive in theory and ambitious in scope may offer limited enforceability in practice, and their impact may remain marginal if compliance cannot be effectively monitored and verified. If policies are not properly translated into binding and operational obligations, the company risks a mismatch between what it promises publicly and what is actually required under its contracts. This may undermine consistency, weaken risk management, and expose the company to reputational and governance risks if its own stated principles cannot be enforced within its supply or distribution chain.

                As part of this process, companies must also consider the protection of trade secrets and confidential information. For example, broad audit or data-reporting obligations may raise concerns about sensitive business information. Contractual terms should balance transparency with the need to protect legitimately proprietary data. Clauses such as confidentiality agreements or carve-outs for trade secrets can be used to ensure that sharing ESG-related information does not compromise confidential business information or competitive advantages.

                Environmental, Social and Governance Clauses Across Different Contract Types

                Besides codes of conduct and sustainability policies, environmental, social and governance-related clauses increasingly take more tailored and transaction-specific forms. In shareholder agreements, sustainability objectives may be reflected in governance structures or even linked to financial outcomes, for example by aligning dividend policies or incentive mechanisms with agreed climate targets. In employment contracts, obligations may extend beyond general compliance and include participation in corporate sustainability training programmes or adherence to internal sustainability guidelines as part of performance expectations.

                In supply and manufacturing agreements, environmental, social and governance provisions may address traceability of raw materials, emissions reporting, waste management, energy efficiency standards or the right to replace a supplier if its environmental practices materially conflict with the contracting party’s sustainability commitments. Such contractual mechanisms increasingly affect SMEs operating as suppliers, as ESG expectations pass through the supply chain.

                Construction contracts often include detailed requirements regarding material selection, lifecycle impacts, carbon footprint calculations and recycling or waste reduction procedures. For example, in Finland, legislation imposes low-carbon and energy efficiency requirements for new buildings, and a party undertaking a construction project is subject to mandatory reporting obligations relating to construction and demolition waste. These statutory requirements are typically reflected and implemented in the relevant project and construction contracts.

                Across these different contract types, the practical significance is consistent. Environmental, social and governance considerations move from the level of general policy into legally enforceable obligations tailored to each specific legal relationship. Contracts function as a mechanism for allocating responsibility, managing compliance risk and aligning commercial incentives with sustainability objectives.

                Proportionate Monitoring and Audit Rights

                In the contractual implementation and monitoring of environmental, social and governance obligations, audit and information rights play a central role. They are closely linked to effective oversight and form an integral part of a coherent contractual framework. In practice, companies typically seek access to relevant data from their business partners and, where appropriate, establish inspection or audit rights to enable meaningful monitoring and verification, whether conducted directly by the company or, commonly, by an independent expert appointed for that purpose.

                However, such arrangements must remain balanced. Overly burdensome provisions may needlessly disrupt day-to-day operations and reduce the willingness to cooperate, particularly for SMEs with limited administrative capacity. By contrast, well-designed mechanisms that balance transparency with confidentiality and operational feasibility are more defensible and more likely to function effectively in practice.

                Contractual Remedies

                As a general principle, the consequences of a breach are determined by the terms agreed between the parties. In practice, the parties will typically first seek to resolve the matter through discussion and good faith negotiations, allowing the non-compliant party an opportunity to clarify the situation and implement corrective actions within a reasonable timeframe. If negotiations do not lead to a resolution, it may be appropriate to proceed to stronger measures, such as contractual penalties, indemnification obligations, price adjustments, temporary suspension rights or other agreed sanctions, applied in light of the nature and severity of the breach.

                The contract should clearly define what constitutes a breach, how it is assessed and what remedies are available in each scenario. Clear and proportionate step-by-step remedy structures enhance legal certainty, reduce the risk of disputes and ensure that material or repeated breaches may trigger more significant consequences, including termination where justified.

                Strategic and Voluntary Environmental, Social and Governance Commitments

                In the current EU landscape, implementing ESG considerations in commercial contracts is no longer simply a matter of reacting to directives. It is a broader exercise in risk management and corporate governance. Even as the implementation details of the directives may continue to evolve, market expectations, financing conditions and reputational considerations remain key drivers of sustainability integration.

                In addition, some companies choose to position themselves as frontrunners in sustainability for strategic and reputational reasons. They may therefore incorporate voluntary environmental, social and governance mechanisms and requirements into their contracts that go beyond, or are not directly derived from, binding directives. By doing so, they signal to investors, customers and other stakeholders that sustainability is treated as a core business priority rather than merely a compliance obligation.

                At the same time, it is important to recognise the practical limits of such commitments. Ambitious sustainability requirements may be more challenging for SMEs with limited financial and administrative resources. Meeting extensive reporting, certification or traceability standards can require investments in systems, personnel and external expertise. If contractual expectations are not calibrated to the size and capacity of the counterparty, they may limit the ability of SMEs to participate in certain supply chains. A balanced and proportionate approach helps ensure that sustainability objectives remain achievable and commercially workable across the contractual chain.

                Conclusion

                For legal practitioners, the central task is not to increase the number of environmental, social and governance clauses as such, but to ensure their quality, coherence and practical relevance. The objective is to design contractual mechanisms that are proportionate, enforceable and aligned with the company’s actual risk profile, industry context and sustainability priorities. Commercial contracts remain one of the most concrete tools for translating sustainability strategy into operational practice. Moreover, every contract lawyer should understand and apply key sustainability principles in their work, ensuring that ESG commitments become integral to legal advice and contract drafting.

                The Strait of Hormuz is likely the most strategically important point for the global oil trade. In fact, approximately 20% of the world’s oil and gas passes through this narrow passage between the Gulf of Oman and the Persian Gulf every day.

                Following the outbreak of war in the region, the impact on energy markets was almost immediate: oil prices quickly rose above $100 per barrel, and it is unclear how high they may climb in the coming weeks and months. As a result, transportation, production, and procurement costs are rising across industrial supply chains in many sectors.

                For many companies engaged in international trade, this phenomenon creates a very real problem. Contracts signed months (or years) earlier—perhaps at a fixed price—must be fulfilled in a completely different economic context.

                A manufacturer that sells goods for delivery in six or twelve months may find itself producing and shipping at much higher energy costs, while the price agreed upon with the customer remains unchanged.

                This is a situation that recurs cyclically, for various reasons: from the COVID-19 pandemic to the subsequent raw materials crisis, and on to current geopolitical tensions.

                When the increase in costs is so sudden and significant, a question inevitably arises: must the contract still be performed under the original terms, or is it possible to suspend or renegotiate the agreement to adapt it to the new circumstances?

                The answer depends on several factors: first and foremost, on what the parties have (or have not) provided for in the contract, but also on the law applicable to the relationship and on the interpretation that judges or arbitrators may give to the rules in the event of a dispute.

                Force Majeure and Hardship: Two Different Concepts

                When extraordinary events occur—such as a war, an energy crisis, or the disruption of a trade route—many operators immediately invoke force majeure. However, in most cases, these situations fall instead under the category of hardship.

                It is therefore essential to distinguish between these two situations.

                When an Event Constitutes Force Majeure

                Force majeure applies to cases where an extraordinary and unforeseeable event makes it impossible to perform the contract.

                The characteristics of the grounds for exemption from liability depend on the law applicable to the commercial relationship, but generally require:

                • unpredictability of the event;
                • the event being beyond the affected party’s control;
                • the impossibility of avoiding or overcoming the event through reasonable efforts.

                Typical examples include:

                • orders from authorities requiring the suspension of production
                • embargoes or export bans
                • logistical disruptions caused by war

                In these situations, performance is not merely more costly: it becomes objectively impossible. The consequence is that the party unable to perform is generally exempt from liability for the duration of the event.

                Hardship

                The situation is different when performance of the contract remains possible but becomes economically much more burdensome.

                The concept of hardship is generally based on four prerequisites:

                1. an event occurring after the conclusion of the contract
                2. unpredictability and extraordinary nature of the event
                3. a substantial alteration of the economic balance of the contract
                4. excessive burden of performance, but not impossibility

                A sharp increase in the price of oil, gas, or other raw materials often falls into this category.

                Goods can be produced and delivered, but doing so may entail costs far higher than those anticipated when the contract was signed.

                The ripple effect along the international supply chain

                In global industrial supply chains, the same goods are often the subject of a series of consecutive contracts.

                The manufacturer sells to a trader, who sells to a processing company, which resells to an importer in another country, who in turn distributes the product to the end market.

                When a hardship event occurs—such as a sharp rise in energy prices—the effect tends to ripple throughout the entire supply chain.

                The first party affected by the cost increase will try to pass the increase on to its contractual counterpart, who, in turn, will find themselves in the same situation with the next link in the chain.

                The risk is clear: one of the operators in the middle of the chain may face increased upstream costs without being able to pass them on downstream.

                This is one of the most common problems in international supply chains.

                What happens if there is no clause regarding price fluctuations

                In commercial practice, it often happens that parties operate on the basis of orders and order confirmations without a formal written contract, or that a contract exists but contains no provisions regarding price fluctuations or hardship.

                In such cases, when costs increase sharply, it is necessary to determine which law applies to individual sales contracts across the supply chain.

                This can lead to very different situations:

                • one law may allow for price revision or termination of the contract
                • another law aplicable to a second contract may not provide for equivalent remedies
                • a third contract may contain much more restrictive contractual clauses

                The practical result is that an operator in the middle of the chain may face a price increase from their supplier without being able to pass it on to the customer.

                A Common Legal Framework: The Vienna Convention on the International Sale of Goods (CISG)

                Fortunately, many international sales contracts are governed by the 1980 Vienna Convention on the International Sale of Goods (CISG).

                The convention has been ratified by 97 countries, including Italy and most major trading partners, such as the U.S., Canada, China, Germany, France, Spain, etc.

                The central provision is Article 79, according to which a party is not liable for non-performance if it proves that the non-performance is due to an impediment:

                • beyond its control
                • unforeseeable at the time of the conclusion of the contract
                • unavoidable or insurmountable

                Traditionally, this provision has been applied to cases of force majeure.

                In recent years, there has been debate over whether it can also be applied to cases of hardship, but international case law tends to be very cautious.

                International case law on Hardship

                Court decisions reflect a rather strict approach.

                In some cases, even very significant increases in raw material costs have not been considered sufficient to modify or suspend the contract.

                The reasoning is simple: those who operate professionally in international trade must take into account a certain degree of market volatility.

                Only when the increase in costs exceeds an exceptional and unforeseeable level such as to radically alter the balance of the contract can hardship be invoked.

                One of the most frequently cited cases is the Belgian Supreme Court’s decision in the Scafom case, which recognized the right to renegotiate the contract following a 70% increase in the price of steel.

                However, such cases are relatively rare.

                Generic clauses that serve no purpose

                Many contracts contain hardship clauses copied from standard templates (boilerplate).

                The problem is that these clauses often:

                • list the effects of hardship
                • but do not define when hardship actually occurs

                The result is that, when prices rise, the parties may have very different opinions on what constitutes an “exceptional” increase and whether the event in question was “unforeseeable” or not.

                The clause, therefore, does not resolve the issue, but defers it to discussion between the parties and, in the event of a failure to reach an agreement, to the courts or arbitrators.

                What criteria can define a hardship situation

                To make the clause truly effective, it is useful to establish objective parameters.

                Among the most commonly used in international contracts:

                • an increase or decrease in the price of a raw material beyond a certain threshold (±20% or ±30%)
                • an increase in transportation or logistics costs within certain limits;
                • significant fluctuations in the exchange rate beyond a specified range;
                • the introduction of tariffs or trade restrictions

                These parameters, linked to tolerance ranges, allow the parties to quickly and unambiguously identify a hardship event.

                Remedies in the Event of Hardship

                An effective clause should also address how to handle the situation.

                The most common solutions are:

                • renegotiation of the contract in good faith
                • apply an automatic price adjustment
                • appointment of an independent third-party expert to determine the new price
                • temporary suspension of the contract
                • right of withdrawal if no agreement is reached

                These tools allow the parties to manage the crisis without resorting to litigation.

                Audit of existing contracts: what to do now

                At this point, the practical question becomes: how should we manage the issue in existing business relationships?

                The first step is to conduct an audit of existing contracts with suppliers and customers.

                1. Introduce comprehensive contracts in new relationships

                If the relationships are governed solely by purchase orders and order confirmations, it is advisable to take this opportunity to draft comprehensive international sales contracts that include:

                • a hardship clause
                • warranty provisions
                • remedies for breach
                • limitations of liability

                2. Update existing contracts

                If the relationship is already governed by a contract, you should check whether a hardship clause exists.

                If not, it may be useful to propose to the other party:

                • a new contract, or
                • a contract addendum dedicated to managing price fluctuations.

                This helps prevent future conflicts and provides both parties with an effective tool to manage potential price shocks along the supply chain.

                Conclusion

                Commodity and energy crises demonstrate how exposed international contracts are to sudden changes in economic conditions. When a contract does not clearly address hardship management, the risk does not disappear; it simply shifts along the supply chain until it settles on the weakest link.

                For this reason, companies operating within international supply chains should view the hardship clause as a strategic tool for managing contractual risk. A well-drafted contract does not eliminate market volatility, but it allows the parties to address it with clear rules, reducing uncertainty and preventing disputes.

                Executive Summary

                The African Continental Free Trade Area (AfCFTA) remains one of the most ambitious integration projects in the world. Yet, several years into its operational phase, it has not (yet) delivered the structural shift many expected. A recent analysis underscores the gap between political momentum and economic reality: implementation remains uneven, the agreement is still used by only a portion of participating states, and non-tariff barriers and infrastructure deficits continue to dominate the cost of doing business across borders.  For Egypt, the opportunity is still real — but it depends less on treaty headlines and more on enabling conditions: trade logistics, customs efficiency, regulatory convergence, and competitive industrial capacity. 

                Looking Back: The Promise of a Single African Market

                When the AfCFTA was launched, expectations were understandably high. A continent-wide trade framework was supposed to reduce tariffs, facilitate trade in goods and services, and strengthen regional value chains — with the broader goal of moving African economies up the value ladder.

                In my 2022 article, I asked whether AfCFTA could become a game changer for Egypt, given Egypt’s industrial base, strategic geography, and the potential to diversify export markets beyond traditional partners. (For background, see the earlier article here”).

                The Reality Check: Intra-African Trade Remains Structurally Weak

                Several years later, the interim assessment is sobering. As the Frankfurter Allgemeine Zeitung (FAZ) recently put it, AfCFTA is not a “game changer” yet, and only about half of member states currently meet the practical prerequisites to trade under the agreement.

                A deeper reason is structural: no other world region trades so little with itself, and while statistics may undercount informal cross-border flows (especially in food), the overall picture remains unchanged.

                Trade integration cannot deliver transformative outcomes if production, logistics, and institutions do not support scale.

                Implementation Has Been Slow — and Often Symbolic

                Operationalisation did not start with full-scale liberalisation. Instead, the AfCFTA began with a pilot approach: the Guided Trade Initiative (GTI) launched in October 2022, initially with eight states, later joined by additional countries, including Nigeria and South Africa by spring 2025.

                The GTI created valuable learning effects, but it also underlined a key point: early progress was often presented through symbolic deals, while product coverage and volumes remained limited. FAZ highlights that only selected goods could be traded duty-free and that key sectors remained constrained for a long time due to missing or unresolved technical rules.

                A pilot, however, cannot substitute for full operational certainty — the kind businesses need to restructure supply chains and invest.

                Tariffs Are Not the Main Barrier — Trade Costs Are

                AfCFTA is frequently discussed in terms of tariff liberalisation. Yet, evidence suggests that the largest gains do not come from tariffs but from reducing non-tariff barriers and improving trade infrastructure.

                FAZ points to a central reality: tariffs tend to add around 20–30% to intra-African trade costs, whereas non-tariff costs can be far higher — driven by bureaucracy, lack of harmonised standards, inefficient border processes, and transport barriers.

                This is the crux: even with reduced tariffs, trade will not expand meaningfully if goods still cannot move cheaply, quickly, and predictably.

                Integration Complexity and Distributional Politics

                Africa’s integration landscape is shaped by multiple overlapping regional economic communities and trade regimes. This creates legal and administrative complexity — often described as an integration “spaghetti bowl.” FAZ notes the challenge of coordination and the continued fragmentation of rules.

                There is also a political economy dimension. Intra-African trade is heavily influenced by a small number of larger economies — and the distribution of benefits matters. FAZ highlights the dominance of major players (notably South Africa) and the concern that tariff liberalisation alone may entrench existing industrial advantages.

                Where governments expect asymmetric outcomes, resistance often takes the form of delay, narrow implementation, or persistent non-tariff barriers.

                What This Means for Egypt: The Opportunity Is Real — But Conditional

                Egypt’s strategic case for AfCFTA participation remains strong: industrial potential, geographic location, and the opportunity to access and shape growing markets. But the experience so far suggests that the treaty text alone does not generate trade flows.

                For Egypt’s private sector, the decisive factors are practical:

                • predictable and efficient customs clearance and border procedures,
                • logistics corridors and port efficiency,
                • regulatory convergence (standards, certification, compliance),
                • stable access to trade finance and payments,
                • competitive energy and production conditions for manufacturing and processing.

                AfCFTA can support these developments — but it cannot replace them.

                The “Game Changer” Pathway: What Must Happen Next

                FAZ concludes that AfCFTA will only become truly impactful if it is paired with the fundamentals: major infrastructure investment, stronger production and processing capacity, and a credible industrial policy.

                At the same time, Africa faces a classic chicken-and-egg problem: without development there is limited investment appeal; without investment there is limited development.

                For Egypt and its partners, a pragmatic strategy would be to:

                1. treat AfCFTA as a platform for real trade-cost reduction, not only tariff debates;
                2. focus on a limited number of scalable corridors and sectors where regional value chains can realistically grow;
                3. strengthen implementation capacity so that preferences become usable for firms — especially SMEs;
                4. enhance legal certainty and dispute resolution reliability for cross-border commerce.

                Conclusion

                AfCFTA remains a landmark achievement in terms of political commitment. But as of today, it has not yet been the “game changer” many hoped for.

                For Egypt, the key question is no longer whether AfCFTA is visionary — it is. The question is whether governments and businesses can translate it into lower real trade costs, higher competitiveness, and bankable cross-border transactions. If those enabling conditions improve, AfCFTA’s promise can still become commercial reality.

                After “Liberation Day,” many foreign companies offered discounts to American importers to help them offset the tariffs. A few months later, the US Supreme Court declared the „reciprocal“ tariffs unlawful, but on the same day, President Trump announced new tariffs. In this article, we provide a practical overview of how to handle various scenarios, shifting from a reactive, unstructured approach to deliberate management of price volatility and trade flows caused by the introduction, adjustment, and removal of tariffs.

                Tariff Sharing agreements

                For a long time, the question has been straightforward: who absorbs the extra customs cost? The exporter? The importer? Both? The question remains important, but today it is incomplete.

                The new scenario, in light of the recent ruling by the US Court of Justice on March 20, 2026, is: what happens if that duty is then canceled and refunded? If the cost was shared between the parties, the benefit of the refund must follow a consistent logic. In the absence of a clear agreement on this point, however, there is a risk of economic misalignment that could compromise the commercial relationship.

                Let’s imagine an Italian winery that sells its products to a US importer. Following the introduction of reciprocal duties, the parties have decided that the exporter will grant an extraordinary discount of 7.5%, explicitly motivated by the need to share the impact of the duty. The commercial relationship continues, volumes remain stable, and the importer avoids passing on the entire increase to the end customer.

                As a result of the Supreme Court ruling (or, in the future, another ruling or administrative decision), the importer obtains a refund of the duties paid during that period.

                If no formal agreements have been made on this point and the documentation refers generically to a „commercial discount“ and says nothing about reimbursement, the situation afterward may be difficult to reconstruct and, above all, could lead to commercial tension. As a result, a positive development (the cancellation of the duty and the right to reimbursement) becomes a problematic factor that jeopardizes the relationship.

                Is the exporter entitled to a refund of the discounts granted to mitigate the duties?

                In the absence of a different agreement between the parties, the right to reimbursement belongs to the party who paid the duty, i.e., in most cases, the importer. Therefore, there is a risk that the importer will enjoy a double benefit (the discount and the duty refund), while the exporter will get nothing.

                For this reason, it is essential that the parties do not limit themselves to negotiating prices and discounts, but also establish the consequences of the adoption, modification, or revocation of duties on the contract, including any refunds.

                To achieve this, the first step is to accurately classify and document the discounts granted. If only a „commercial discount“ appears in emails, commercial orders, credit notes, and invoices, it will be harder to later argue that this discount was actually an extraordinary, temporary contribution related to the duty. Conversely, if the documentation and contract specify that it is a tariff sharing or tariff mitigation measure, identifying the amounts to be refunded after the fact becomes much simpler.

                The goal is to create a clear view of the trend in discounts and payments so that, if needed, financial flows can be adjusted to align with the original terms of the agreement: if the exporter has helped cover a cost that then, in whole or in part, does not end up materializing, they will be eligible for a refund of the contribution paid.

                The contract will therefore include, in addition to the Tariff Sharing clause, a Tariff Reimbursement Allocation clause, which states that if the importer receives a refund, credit, or any other economic benefit related to the duty for which the exporter has granted a discount, the importer must return the corresponding portion of the benefit to the exporter in full. or proportionally, depending on how the parties intend to distribute risk and incentive.

                Importer’s responsibility to seek reimbursement

                It is unclear whether, in the case of US reciprocal duties, importers can simply file an administrative claim to get a refund or if legal action will be required. The latter seems more probable.

                Generally, obtaining a duty refund involves action, deadlines, documentation, and coordination with brokers and customs consultants. In most cases, the entity controlling the process is the importer (or someone acting on their behalf).

                This raises a sensitive but very real issue: if the importer knows that they will have to invest time and money to obtain a refund, only to then have to share the benefit with the exporter, their incentive to take action may be reduced. To prevent this inertia  the contract should contain an express obligation to take action, set out as a duty of best efforts or commercially reasonable efforts.

                For example, the contract should specify that the importer must inquire about the conditions and time limits of the process, keep relevant documentation, regularly inform the exporter about the progress of the initiatives, and not unilaterally waive or reduce the claim if it affects the exporter’s economic rights.

                Preventive Agreements on Litigation and Cost Allocation

                When reimbursement involves a lawsuit or structured legal action, the obstacles are organizational and financial: who decides if and when to proceed, who selects the lawyers, who pays the costs upfront, how the net recovery is divided, and who has the final say on a settlement. This generally applies to all contracts, not just this case: dispute resolution methods must be addressed and agreed upon before the problem arises.

                Otherwise, the dispute resolution process risks becoming a secondary improvised negotiation at the worst time — when the parties are already under pressure from margins, cash flow, and regulatory uncertainty. As a result, it becomes much harder to reach an agreement.

                How to handle new tariffs and their potential cancellation

                To safeguard against uncertainty, the agreement should be organized into two stages.

                • The first stage regulates the immediate impact of the change in scenario, for example, the introduction of a new tariff or its increase (renegotiation, cost sharing, automatic adjustment : I discussed this in this article).
                • The second stage manages the possible „rollback“ (right to reimbursement, process, allocation criteria).

                This approach has a clear benefit: it does not force the parties to discuss every time the tariff regime changes or a decision to cancel tariffs is made. Instead of reacting to market changes, a tool is adopted to manage potential scenarios, which is much more resilient commercially and easier to oversee, as the rules have already been agreed upon.

                This allows the impact of duties to be regulated not as an extraordinary variable, to be agreed upon on a one-time basis, but as a structural, adaptable phenomenon that could last a long time.

                This is why it is crucial to know how to draft contracts that cover both the current situation and potential changes, including any refunds.

                Conclusion: Three practical steps for companies exporting to the US

                The first is to agree on the consequences for the contract of the introduction of a new duty, increasing it, or revoking it (renegotiation, cost sharing, automatic price adjustment, right to share the refund).

                The second is to clearly document any discount granted to offset a duty. If it remains a generic „commercial discount,“ the right to a refund if reimbursement occurs will be much harder to enforce.

                The third step is to determine what happens if the duty is canceled or revoked: the importer’s responsibility to take action to get a refund, manage the administrative process or litigation, how to divide costs, who oversees the activities of consultants and lawyers, and how the recovered funds will be allocated.

                How do you approach negotiating a trade agreement with China?

                Based on my experience, let’s examine the issues to be addressed and the main questions to ask, taking the negotiation of a trade distribution agreement as a practical example.

                Let’s start with the first issue that is important to clarify.

                Nice Business Card – But Who Is This Guy?

                Business cards, websites, printed or digital brochures, presentations, and any other materials shared in English have no official value in China.

                The company name of the counterparty and the first and last names of people representing it or acting on its behalf, written in English, are only fictitious names.

                To be certain of the company’s data and the identity of the persons, it is necessary to ask for the information in Chinese, with particular reference to the company’s business license (equivalent to the Companies House or Chamber of Commerce’s excerpt), from which the name, corporate purpose, registered and paid-up share capital, and the name of the legal representative can be inferred.

                The data can then be verified by accessing the portal of the State Administration of Industry and Commerce (SAIC) of the province where the Chinese party is based.

                This first verification is essential to ensure that you do not waste time or even run into scams (here’s an in-depth article on Legalmondo’s blog).

                If You Don’t Own Your Trademark, Someone Else Will – and Charge You for It

                Trademark First, Trade Later. China operates on a first-to-file system for trademarks, which means that the first person or company to register a trademark – not necessarily the original creator or most famous user – gains the legal rights to it. This creates a serious risk: if you haven’t registered your trademark in China, someone else might do it before you, and then either use it freely or demand a hefty ransom to give it back. Even high-profile figures like Elon Musk and Michael Jordan have been entangled in costly and protracted disputes with Chinese trademark squatters. In many cases, getting the mark back is highly complicated, and sometimes legally impossible.

                To avoid this, register your trademarks early, even before entering the Chinese market. File directly with the China Trademark Office (CTMO) and don’t stop at the English version — consider registering a Chinese character version as well, since that is how your brand will often be known locally.

                Once that base is covered, clearly state in your contract that your Chinese partner is not allowed to file a registration of any of your trademarks in China, in Latin or Chinese characters, and that he will use trademarks and IP rights in strict conformance to the contract and your instructions.

                For a deeper dive into how to effectively protect your IP rights in China, check out our detailed article on the Legalmondo blog.

                Contracts can wait. First, get on the same page

                When negotiating with a Chinese partner, it’s often a mistake to begin the conversation by exchanging contract drafts. Instead, focus first on the substance — the relationship’s commercial and technical terms. Using a clear checklist of key discussion points (such as products, pricing, delivery terms, technical standards, after-sales support, exclusivity, duration, payment terms, etc.) helps ensure that both sides are aligned on what really matters. Take detailed notes and keep minutes of the discussions, especially where and when consensus is reached, and make sure those minutes are circulated and expressly agreed upon. Once substantial agreement has been achieved on the main terms, this memo can then be handed over to your lawyer, who will translate the business understanding into clear and coherent contractual language. This approach saves tons of time, as it helps avoid unnecessary back-and-forth on legal language before the core deal is in place.

                Think Your NDA Covers You in China? Think Again

                Yes, they are—and often underestimated. A well-drafted Non-Disclosure Agreement (NDA) is essential when the parties plan to exchange confidential information, such as technological know-how, commercial strategies, supplier data, or client lists. Especially in the early phases of negotiation or cooperation, before a main contract is signed, an NDA helps protect intellectual and business assets.

                However, as with all contracts in China, a generic NDA template copied from other jurisdictions will likely be of limited use. To be truly effective, the NDA must be adapted to the specifics of the Chinese legal environment. This includes ensuring that it is enforceable in China: the NDA should include the proper dispute resolution mechanism (see below on why you should consider applying Chinese law and litigating in China), and it must specify clear, valid, and proportionate penalties for breach. In Chinese practice, stating specific contractual penalties (liquidated damages) is often more effective than vague references to compensation, as courts and arbitrators in China tend to enforce these more reliably if they are reasonable.

                While a good NDA is useful, it often falls short in China’s manufacturing and sourcing landscape. This is where the NNN Agreement – standing for Non-Disclosure, Non-Use, and Non-Circumvention – becomes critical. Unlike standard NDAs that primarily focus on confidentiality, an NNN Agreement is designed to address the unique risks of doing business in China. It prevents the recipient from not only disclosing confidential information but also from using it for their benefit or bypassing the disclosing party to work directly with suppliers, clients, or partners. Which, in China, is a very real risk.

                This broader scope is vital when dealing with Chinese manufacturers or intermediaries, who may otherwise be tempted to replicate products or contact customers directly or through third parties. As seen with the NDA, also the NNN Agreement must be drafted in Chinese, governed by Chinese law, and enforceable in Chinese courts -otherwise, it may offer little real protection.

                Joint venture? Easy, Cowboy

                A joint venture is often the first proposal that comes up when negotiating with a potential Chinese partner. It seems appealing: sharing risks and investments, accessing the local market with an ally, leveraging their knowledge and network of contacts. But the reality is often very different from what it appears to be.

                A joint venture is a complex, expensive, and rigid corporate structure that requires significant investments of money, time, and human resources, as well as the ability to continuously manage often divergent interests among the partners. The vast majority of Sino-Foreign JVs have gone wrong, or will go wrong. Or very wrong. First and foremost, because the JV is usually managed by the Chinese partner, and exercising effective control over the company’s operations is a very challenging undertaking.

                Before going down this road, it is essential to ask yourself a few questions: Is the joint venture really indispensable for developing this business in China? (Spoiler: generally, no). Are there less restrictive and risky alternatives, such as a distribution agreement or a licensing agreement? (Yes, almost always). And above all: how well do we really know our potential partner?

                A joint venture should only be considered if it is strictly necessary for the project’s development, after carefully verifying the commercial viability and the reliability of the Chinese partner, and ensuring the ability to maintain effective control over the JV’s operations.

                It is better to start with simpler and more flexible forms of collaboration to test the market and the relationship with the other party before committing to such a demanding investment. Otherwise, the mirage of the joint venture risks turning into a nightmare that can be very costly.

                Memorandum of Understanding: Where Good Intentions Become Bad Contracts

                A Memorandum of Understanding (MoU) is a helpful tool at the early stage of a commercial relationship. It serves as a roadmap for future negotiations, where the parties outline the main principles and intentions that will guide the drafting of the final agreements. When used correctly, an MoU can significantly facilitate negotiations by ensuring that both sides commit to negotiating the agreement in good faith and share a common understanding of key points such as pricing models, territorial scope, exclusivity, milestones, budget, or performance expectations.

                However, an MoU must be used for what it is: a preparatory document, not a binding contract. Care must be taken to avoid ambiguity and unintended commitments. The text should clearly specify that the parties remain free to conclude – or not – the final agreements and which clauses are non-binding – such as the commercial framework or indicative timelines – and which provisions are binding, typically confidentiality, exclusivity during the negotiations (if agreed), governing law, and dispute resolution. A poorly drafted MoU, which includes overly precise and complete terms, can be misinterpreted as a final agreement, creating unnecessary legal risk. So yes, MoUs are valuable – but only when used correctly. If you’d like to know more, go deeper by reading this article.

                Bad Drafts, Big Headaches, Poor results

                Draft agreements used in China are often copied and pasted from incomplete, superficial, poorly organised templates written in bad English, which often do not match the Chinese version of the contract.

                Correcting and integrating these drafts is complicated and more time-consuming than starting from a good template, with suboptimal results.

                It would be better to propose a consistently constructed text and ask the other party to propose any changes and additions to this draft.

                Your Western Contract Template Won’t Work Here

                Even if an English-language contract is perfectly valid, there are many reasons why using contract templates built for other countries in the Chinese market is inadvisable.

                The first is the fact that Anglo-Saxon-based agreements, such as those for the U.S., refer to a common law system (which is based on judicial decisions and case law precedents) that is very different from that of civil law countries (such as China and Italy), which derives from the Roman legal tradition, based on a codified set of written laws.

                It follows that the layout of an agreement on the Anglo-Saxon model is different, much more detailed, and wordy than that of a typical agreement based on a civil law system. Since contract negotiations in China are generally lengthy and complex, working on redundant and complicated text at the outset does not help.

                If we stick to the example of a distribution contract, it should be added that it is advisable to apply Chinese law to provide for arbitration based in China (e.g., at CIETAC) or in Hong Kong or Singapore (third countries, where, however, the costs of the procedure increase significantly) as the mode of dispute resolution. So, the contract should be built on a model that conforms to the law that will apply to the relationship.

                Home Court Advantage Won’t Help You in China. In fact, quite the opposite

                This is a typical point of disagreement in the negotiation of an international contract: the parties aim to have the law of their own country apply, and to stipulate that any disputes be adjudicated by their domestic courts.

                In our case, insisting on the application of Italian (or any other foreign) law and state court is not a good idea: it should be considered, in fact, that a distribution agreement is carried out, for the vast majority, in the country where the distributor operates and where the products are sold (in our case, in mainland China).

                In disputes, the parties‘ (particularly the manufacturer’s) interest is to obtain a quick decision by the adjudicating body, especially if situations requiring immediate protection (such as unfair conduct or counterfeiting of trademarks and patents by the distributor) are ongoing.

                None of this is possible if one goes to an Italian judge (with lengthy litigation time and the need then for a complex and costly process to recognise and enforce the decision in China); on the contrary,  an arbitration in China, applying Chinese law, allows one to reach a decision quickly (on average 6-9 months) and, if necessary, also to obtain urgent measures to stop any unfair conduct.

                Chinese Law Isn’t a Black Box (If You Know What You’re Doing)

                The lawyer assisting you should know it.

                Therefore, it is not a leap in the dark, and one should not fear surprises.

                In addition, it should be remembered that an agreement is primarily based on the covenants that the parties have written in the contract; therefore, if the contract has been well drafted, the rules to be applied are clear.

                Finally, if we consider distribution agreements, keep in mind that they are a framework contract, within which a series of separate product sales contracts are concluded. If both countries are contracting parties to the 1980 Vienna Convention on the International Sale of Goods (CISG), then the uniform, clear, and balanced rules of the convention apply automatically, just don’t opt out!

                One Contract, Two Languages

                The contract is also valid in English only.  However, it is undoubtedly advisable to draft a Chinese version with facing text.

                This is for several reasons: first, it prevents the Chinese party from having to arrange for a translation of the text during negotiations for its own internal use (top managers often do not speak English), thus slowing down the various steps of negotiations.

                Also, to ensure that the Chinese side fully understands the agreement’s content and to avert misunderstandings (real or instrumental) about the interpretation of certain covenants.

                Finally, it should be borne in mind that if the contract were later to be used before a court or administrative authority in China, the only language admitted would be Chinese; for this reason, it is better to have already a text agreed and signed by the parties in Chinese as well, rather than having to prepare a unilateral translation later.

                Sign. And chop

                Does the contract need to bear the company’s official stamp? Yes, and this point is absolutely crucial. In China, a company’s official „chop“ (the red-ink stamp) is equivalent to a signature and is conclusive proof that the person signing the contract has the authority to represent the company. A signature alone, even from someone with an important-sounding title, may not be sufficient if it is not accompanied by the official chop. Without it, the contract might later be challenged or even considered void. Before signing, always verify that the stamp used matches the one registered with the company’s business license or official corporate records, and ensure that the stamp is applied on every page or at least on the signature page, in line with local practice.

                Don’t Let Your Contract Collect Dust

                Things change fast, especially in China. New products are added, market conditions evolve, people leave the company, new competitors emerge on the horizon, and so on. Companies constantly adapt to the new conditions, and so must the contract.

                Any change in the relationship should be formalized correctly. To avoid misunderstandings and disputes, it’s advisable to include an integration clause in the contract, specifying that any amendments or additions will only be valid if agreed in writing, signed by the parties’ authorized representatives, and annexed as an addendum to the original agreement.

                It’s not enough to include this clause – you must follow it consistently. If things change, agreements reached verbally, through Wechat messages, and through email exchanges may make things complicated if they are not formalised adequately according to the procedure set out in the original contract.

                If you’d like to go deeper, check out this article.

                Ignacio Alonso

                Rechtsgebiete

                • Agentur
                • Unternehmen
                • Vertrieb
                • Franchising
                Kontakt Ignacio

                Schreiben Sie an Ignacio





                  Legalmondos Datenschutzbestimmungen lesen.
                  This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.