Los franquiciadores extranjeros que firmen contratos de franquicia en España deben tomar buena nota del contenido de la sentencia de la Audiencia Provincial de Cordoba de 20 de noviembre de 2025 y exigir que el socio o los socios y los administradores de la compañía franquiciada garanticen y avalen expresamente el pago de las posibles deudas que genere el contrato de franquicia.

La legislación societaria española establece el principio de responsabilidad de los administradores de las compañías anónimas o de responsabilidad limitada cuando la sociedad se halle en causa de disolución (por ejemplo por pérdidas que reduzcan el patrimonio por debajo del 50% de la cifra de capital social) y pese a ello no convocaren junta para la adopción de las medidas correctoras (disolución o aumento de capital).

En el caso de la sentencia arriba citada, el franquiciador no pudo cobrar a la sociedad franquiciada la deuda derivada del contrato de franquicia por su insolvencia; entonces decidió reclamar al administrador de la sociedad dicha deuda con fundamento en el precepto arriba comentado, es decir, por el hecho de que la sociedad franquiciada estaba en causa de disolución por pérdidas y el administrador no había convocado junta de socios como era su obligación para que los socios decidieran como solventar la situación.

La sentencia que comentamos de la Audiencia de Cordoba confirma la de primera instancia y desestima la demanda del franquiciador contra el administrador único de la sociedad franquiciada afirmando que:

Por lo que se refiere a la responsabilidad por deudas sociales del artículo 367 de la Ley de Sociedades de Capital, se reconocía la existencia de las deudas sociales, la concurrencia de la causa de disolución, el incumplimiento de las obligaciones legales del administrador social y su imputabilidad, pero concurría una causa de exoneración de responsabilidad de conformidad con la doctrina del «riesgo conocido». Así se indicaba que la actora es una sociedad franquiciadora y X.S.L. era la franquiciada, resultando de las comunicaciones electrónicas que la franquiciada era monitorizada de forma permanente y la franquiciadora conocía el riesgo de las operaciones, paralizando el envío de género (ropa) en el momento que se superaban los límites de los avales concedido, por lo que la actora asumió voluntariamente el riesgo. Por todo ello desestimaba la demanda.

En conclusión y a tenor de lo expuesto, la presente relación jurídica de franquicia y su desenvolvimiento permite considerar acreditar la existencia por parte de la franquiciadora (acreedora) de un mayor conocimiento de la situación económica financiera de la franquiciada (deudora), más allá de la información que aparece en las cuentas anuales depositadas en el Registro Mercantil al ser su principal proveedor. Y este conocimiento y situación de control de la deuda por parte de la franquiciadora (mediante el incremento de envío de pedidos) justifica la exoneración de la responsabilidad del administrador social por las deudas sociales del artículo 367 de la Ley de Sociedades de Capital, lo que determina la desestimación del recurso de apelación

La teoría o principio de derecho del Riesgo Conocido/Aceptado, al que se refiere la sentencia, defiende que un daño ocasionado a un tercero, con o sin relación contractual por medio, no se considera antijurídico si la víctima conocía el riesgo y lo asumió voluntariamente. 

Inicialmente se desarrolló esa doctrina en el marco de la responsabilidad extracontractual, quien realiza una actividad de riesgo y se aprovecha de sus beneficios debe asumir sus consecuencias negativas, es decir el riesgo, (cuius commodum, eius incommodum).

Pero la jurisprudencia ha extendido la aplicación de teoría al campo de la responsabilidad contractual, como se muestra en la sentencia que comentamos.

Por lo tanto al conocer el demandante la situación económica y de solvencia de la demandada, por “monitorizar” como franquiciador su actividad y pese a ello, haber decidido mantener la vigencia del contrato, incrementando la deuda, entiende la sentencia que el franquiciador asumió el riesgo, lo que constituyó una causa de exoneración de responsabilidad del administrador. Ahora bien, más preocupante que lo anterior, es que se considerase aplicable esta teoría del “riesgo conocido” a la propia responsabilidad de la sociedad franquiciada, la que pudiera ser exonerada de responsabilidad con fundamento en esa monitorización de sus actividades por le franquiciador.

La conclusión de todo lo anterior es que en base a esta aplicación de la teoría del riesgo conocido, los franquiciadores pueden tener dificultades para reclamar las deudas de la sociedad franquiciada, en caso de insolvencia de la misma, a sus administradores, por lo que es muy aconsejable que a la hora de firmar el contrato de franquicia se exija la garantía solidaria de las posibles y futuras deudas de la franquicia a sus administradores y socios, lo que por otra parte constituye una práctica bastante estandarizada.

De este modo, no entraría en juego la objeción derivada de la teoría del riesgo conocido.

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.

Summary

Phil Knight, the founder of Nike, imported the Japanese brand Onitsuka Tiger into the US market in 1964 and quickly gained a 70% share. When Knight learned Onitsuka was looking for another distributor, he created the Nike brand. This led to two lawsuits between the two companies, but Nike eventually won and became the most successful sportswear brand in the world. This article looks at the lessons to be learned from the dispute, such as how to negotiate an international distribution agreement, contractual exclusivity, minimum turnover clauses, duration of the contract, ownership of trademarks, dispute resolution clauses, and more.

What I talk about in this article

• The Blue Ribbon vs. Onitsuka Tiger dispute and the birth of Nike 
• How to negotiate an international distribution agreement 
• Contractual exclusivity in a commercial distribution agreement 
• Minimum Turnover clauses in distribution contracts
• Duration of the contract and the notice period for termination  
• Ownership of trademarks in commercial distribution contracts
• The importance of mediation in international commercial distribution agreements 
• Dispute resolution clauses in international contracts
• How we can help you 

The Blue Ribbon vs Onitsuka Tiger dispute and the birth of Nike

Why is the most famous sportswear brand in the world Nike and not Onitsuka Tiger?
Shoe Dog is the biography of the creator of Nike, Phil Knight: for lovers of the genre, but not only, the book is really very good and I recommend reading it. 

Moved by his passion for running and intuition that there was a space in the American athletic shoe market, at the time dominated by Adidas, Knight was the first, in 1964, to import into the U.S. a brand of Japanese athletic shoes, Onitsuka Tiger, coming to conquer in 6 years a 70% share of the market. 

The company founded by Knight and his former college track coach, Bill Bowerman, was called Blue Ribbon Sports. 

The business relationship between Blue Ribbon-Nike and the Japanese manufacturer Onitsuka Tiger was, from the beginning, very turbulent, despite the fact that sales of the shoes in the U.S. were going very well and the prospects for growth were positive. 

When, shortly after having renewed the contract with the Japanese manufacturer, Knight learned that Onitsuka was looking for another distributor in the U.S., fearing to be cut out of the market, he decided to look for another supplier in Japan and create his own brand, Nike. 

Upon learning of the Nike project, the Japanese manufacturer challenged Blue Ribbon for violation of the non-competition agreement, which prohibited the distributor from importing other products manufactured in Japan, declaring the immediate termination of the agreement. 

In turn, Blue Ribbon argued that the breach would be Onitsuka Tiger’s, which had started meeting other potential distributors when the contract was still in force and the business was very positive. 

This resulted in two lawsuits, one in Japan and one in the U.S., which could have put a premature end to Nike’s history.   

Fortunately (for Nike) the American judge ruled in favor of the distributor and the dispute was closed with a settlement: Nike thus began the journey that would lead it 15 years later to become the most important sporting goods brand in the world. 

Let’s see what Nike’s history teaches us and what mistakes should be avoided in an international distribution contract. 

How to negotiate an international commercial distribution agreement 

In his biography, Knight writes that he soon regretted tying the future of his company to a hastily written, few-line commercial agreement at the end of a meeting to negotiate the renewal of the distribution contract.  

What did this agreement contain? 

The agreement only provided for the renewal of Blue Ribbon’s right to distribute products exclusively in the USA for another three years. 

It often happens that international distribution contracts are entrusted to verbal agreements or very simple contracts of short duration: the explanation that is usually given is that in this way it is possible to test the commercial relationship, without binding too much to the counterpart. 

This way of doing business, though, is wrong and dangerous: the contract should not be seen as a burden or a constraint, but as a guarantee of the rights of both parties. Not concluding a written contract, or doing so in a very hasty way, means leaving without clear agreements fundamental elements of the future relationship, such as those that led to the dispute between Blue Ribbon and Onitsuka Tiger: commercial targets, investments, ownership of brands. 

If the contract is also international, the need to draw up a complete and balanced agreement is even stronger, given that in the absence of agreements between the parties, or as a supplement to these agreements, a law with which one of the parties is unfamiliar is applied, which is generally the law of the country where the distributor is based.  

Even if you are not in the Blue Ribbon situation, where it was an agreement on which the very existence of the company depended, international contracts should be discussed and negotiated with the help of an expert lawyer who knows the law applicable to the agreement and can help the entrepreneur to identify and negotiate the important clauses of the contract. 

Territorial exclusivity, commercial objectives and minimum turnover targets 

The first reason for conflict between Blue Ribbon and Onitsuka Tiger was the evaluation of sales trends in the US market. 

Onitsuka argued that the turnover was lower than the potential of the U.S. market, while according to Blue Ribbon the sales trend was very positive, since up to that moment it had doubled every year the turnover, conquering an important share of the market sector. 

When Blue Ribbon learned that Onituska was evaluating other candidates for the distribution of its products in the USA and fearing to be soon out of the market, Blue Ribbon prepared the Nike brand as Plan B: when this was discovered by the Japanese manufacturer, the situation precipitated and led to a legal dispute between the parties. 

The dispute could perhaps have been avoided if the parties had agreed upon commercial targets and the contract had included a fairly standard clause in exclusive distribution agreements, i.e. a minimum sales target on the part of the distributor. 

In an exclusive distribution agreement, the manufacturer grants the distributor strong territorial protection against the investments the distributor makes to develop the assigned market. 

In order to balance the concession of exclusivity, it is normal for the producer to ask the distributor for the so-called Guaranteed Minimum Turnover or Minimum Target, which must be reached by the distributor every year in order to maintain the privileged status granted to him. 

If the Minimum Target is not reached, the contract generally provides that the manufacturer has the right to withdraw from the contract (in the case of an open-ended agreement) or not to renew the agreement (if the contract is for a fixed term) or to revoke or restrict the territorial exclusivity. 

In the contract between Blue Ribbon and Onitsuka Tiger, the agreement did not foresee any targets (and in fact the parties disagreed when evaluating the distributor’s results) and had just been renewed for three years: how can minimum turnover targets be foreseen in a multi-year contract? 

In the absence of reliable data, the parties often rely on predetermined percentage increase mechanisms: +10% the second year, + 30% the third, + 50% the fourth, and so on. 

The problem with this automatism is that the targets are agreed without having available the real data on the future trend of product sales, competitors’ sales and the market in general, and can therefore be very distant from the distributor’s current sales possibilities. 

For example, challenging the distributor for not meeting the second or third year’s target in a recessionary economy would certainly be a questionable decision and a likely source of disagreement. 

It would be better to have a clause for consensually setting targets from year to year, stipulating that targets will be agreed between the parties in the light of sales performance in the preceding months, with some advance notice before the end of the current year.  In the event of failure to agree on the new target, the contract may provide for the previous year’s target to be applied, or for the parties to have the right to withdraw, subject to a certain period of notice. 

It should be remembered, on the other hand, that the target can also be used as an incentive for the distributor: it can be provided, for example, that if a certain turnover is achieved, this will enable the agreement to be renewed, or territorial exclusivity to be extended, or certain commercial compensation to be obtained for the following year. 

A final recommendation is to correctly manage the minimum target clause, if present in the contract: it often happens that the manufacturer disputes the failure to reach the target for a certain year, after a long period in which the annual targets had not been reached, or had not been updated, without any consequences. 

In such cases, it is possible that the distributor claims that there has been an implicit waiver of this contractual protection and therefore that the withdrawal is not valid: to avoid disputes on this subject, it is advisable to expressly provide in the Minimum Target clause that the failure to challenge the failure to reach the target for a certain period does not mean that the right to activate the clause in the future is waived. 

The notice period for terminating an international distribution contract

The other dispute between the parties was the violation of a non-compete agreement: the sale of the Nike brand by Blue Ribbon, when the contract prohibited the sale of other shoes manufactured in Japan. 

Onitsuka Tiger claimed that Blue Ribbon had breached the non-compete agreement, while the distributor believed it had no other option, given the manufacturer’s imminent decision to terminate the agreement. 

This type of dispute can be avoided by clearly setting a notice period for termination (or non-renewal): this period has the fundamental function of allowing the parties to prepare for the termination of the relationship and to organize their activities after the termination. 

In particular, in order to avoid misunderstandings such as the one that arose between Blue Ribbon and Onitsuka Tiger, it can be foreseen that during this period the parties will be able to make contact with other potential distributors and producers, and that this does not violate the obligations of exclusivity and non-competition. 

In the case of Blue Ribbon, in fact, the distributor had gone a step beyond the mere search for another supplier, since it had started to sell Nike products while the contract with Onitsuka was still valid: this behavior represents a serious breach of an exclusivity agreement. 

A particular aspect to consider regarding the notice period is the duration: how long does the notice period have to be to be considered fair? In the case of long-standing business relationships, it is important to give the other party sufficient time to reposition themselves in the marketplace, looking for alternative distributors or suppliers, or (as in the case of Blue Ribbon/Nike) to create and launch their own brand. 

The other element to be taken into account, when communicating the termination, is that the notice must be such as to allow the distributor to amortize the investments made to meet its obligations during the contract; in the case of Blue Ribbon, the distributor, at the express request of the manufacturer, had opened a series of mono-brand stores both on the West and East Coast of the U.S.A.. 

A closure of the contract shortly after its renewal and with too short a notice would not have allowed the distributor to reorganize the sales network with a replacement product, forcing the closure of the stores that had sold the Japanese shoes up to that moment. 

Generally, it is advisable to provide for a notice period for withdrawal of at least 6 months, but in international distribution contracts, attention should be paid, in addition to the investments made by the parties, to any specific provisions of the law applicable to the contract (here, for example, an in-depth analysis for sudden termination of contracts in France) or to case law on the subject of withdrawal from commercial relations (in some cases, the term considered appropriate for a long-term sales concession contract can reach 24 months). 

Finally, it is normal that at the time of closing the contract, the distributor is still in possession of stocks of products: this can be problematic, for example because the distributor usually wishes to liquidate the stock (flash sales or sales through web channels with strong discounts) and this can go against the commercial policies of the manufacturer and new distributors. 

In order to avoid this type of situation, a clause that can be included in the distribution contract is that relating to the producer’s right to repurchase existing stock at the end of the contract, already setting the repurchase price (for example, equal to the sale price to the distributor for products of the current season, with a 30% discount for products of the previous season and with a higher discount for products sold more than 24 months previously). 

Trademark Ownership in an International Distribution Agreement 

During the course of the distribution relationship, Blue Ribbon had created a new type of sole for running shoes and coined the trademarks Cortez and Boston for the top models of the collection, which had been very successful among the public, gaining great popularity: at the end of the contract, both parties claimed ownership of the trademarks. 

Situations of this kind frequently occur in international distribution relationships: the distributor registers the manufacturer’s trademark in the country in which it operates, in order to prevent competitors from doing so and to be able to protect the trademark in the case of the sale of counterfeit products; or it happens that the distributor, as in the dispute we are discussing, collaborates in the creation of new trademarks intended for its market.  

At the end of the relationship, in the absence of a clear agreement between the parties, a dispute can arise like the one in the Nike case: who is the owner, producer or distributor?

In order to avoid misunderstandings, the first advice is to register the trademark in all the countries in which the products are distributed, and not only: in the case of China, for example, it is advisable to register it anyway, in order to prevent third parties in bad faith from taking the trademark (for further information see this post on Legalmondo). 

It is also advisable to include in the distribution contract a clause prohibiting the distributor from registering the trademark (or similar trademarks) in the country in which it operates, with express provision for the manufacturer’s right to ask for its transfer should this occur. 

Such a clause would have prevented the dispute between Blue Ribbon and Onitsuka Tiger from arising. 

The facts we are recounting are dated 1976: today, in addition to clarifying the ownership of the trademark and the methods of use by the distributor and its sales network, it is advisable that the contract also regulates the use of the trademark and the distinctive signs of the manufacturer on communication channels, in particular social media. 

It is advisable to clearly stipulate that the manufacturer is the owner of the social media profiles, of the content that is created, and of the data generated by the sales, marketing and communication activity in the country in which the distributor operates, who only has the license to use them, in accordance with the owner’s instructions. 

In addition, it is a good idea for the agreement to establish how the brand will be used and the communication and sales promotion policies in the market, to avoid initiatives that may have negative or counterproductive effects. 

The clause can also be reinforced with the provision of contractual penalties in the event that, at the end of the agreement, the distributor refuses to transfer control of the digital channels and data generated in the course of business. 

Mediation in international commercial distribution contracts 

Another interesting point offered by the Blue Ribbon vs. Onitsuka Tiger case is linked to the management of conflicts in international distribution relationships: situations such as the one we have seen can be effectively resolved through the use of mediation. 

This is an attempt to reconcile the dispute, entrusted to a specialized body or mediator, with the aim of finding an amicable agreement that avoids judicial action. 

Mediation can be provided for in the contract as a first step, before the eventual lawsuit or arbitration, or it can be initiated voluntarily within a judicial or arbitration procedure already in progress. 

The advantages are many: the main one is the possibility to find a commercial solution that allows the continuation of the relationship, instead of just looking for ways for the termination of the commercial relationship between the parties. 

Another interesting aspect of mediation is that of overcoming personal conflicts: in the case of Blue Ribbon vs. Onitsuka, for example, a decisive element in the escalation of problems between the parties was the difficult personal relationship between the CEO of Blue Ribbon and the Export manager of the Japanese manufacturer, aggravated by strong cultural differences. 

The process of mediation introduces a third figure, able to dialogue with the parts and to guide them to look for solutions of mutual interest, that can be decisive to overcome the communication problems or the personal hostilities. 

For those interested in the topic, we refer to this post on Legalmondo and to the replay of a recent webinar on mediation of international conflicts. 

Dispute resolution clauses in international distribution agreements 

The dispute between Blue Ribbon and Onitsuka Tiger led the parties to initiate two parallel lawsuits, one in the US (initiated by the distributor) and one in Japan (rooted by the manufacturer). 

This was possible because the contract did not expressly foresee how any future disputes would be resolved, thus generating a very complicated situation, moreover on two judicial fronts in different countries. 

The clauses that establish which law applies to a contract and how disputes are to be resolved are known as «midnight clauses«, because they are often the last clauses in the contract, negotiated late at night. 

They are, in fact, very important clauses, which must be defined in a conscious way, to avoid solutions that are ineffective or counterproductive. 

How we can help you 

The construction of an international commercial distribution agreement is an important investment, because it sets the rules of the relationship between the parties for the future and provides them with the tools to manage all the situations that will be created in the future collaboration. 

It is essential not only to negotiate and conclude a correct, complete and balanced agreement, but also to know how to manage it over the years, especially when situations of conflict arise. 

Legalmondo offers the possibility to work with lawyers experienced in international commercial distribution in more than 60 countries: write us your needs.

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.

Los franquiciadores extranjeros que firmen contratos de franquicia en España deben tomar buena nota del contenido de la sentencia de la Audiencia Provincial de Cordoba de 20 de noviembre de 2025 y exigir que el socio o los socios y los administradores de la compañía franquiciada garanticen y avalen expresamente el pago de las posibles deudas que genere el contrato de franquicia.

La legislación societaria española establece el principio de responsabilidad de los administradores de las compañías anónimas o de responsabilidad limitada cuando la sociedad se halle en causa de disolución (por ejemplo por pérdidas que reduzcan el patrimonio por debajo del 50% de la cifra de capital social) y pese a ello no convocaren junta para la adopción de las medidas correctoras (disolución o aumento de capital).

En el caso de la sentencia arriba citada, el franquiciador no pudo cobrar a la sociedad franquiciada la deuda derivada del contrato de franquicia por su insolvencia; entonces decidió reclamar al administrador de la sociedad dicha deuda con fundamento en el precepto arriba comentado, es decir, por el hecho de que la sociedad franquiciada estaba en causa de disolución por pérdidas y el administrador no había convocado junta de socios como era su obligación para que los socios decidieran como solventar la situación.

La sentencia que comentamos de la Audiencia de Cordoba confirma la de primera instancia y desestima la demanda del franquiciador contra el administrador único de la sociedad franquiciada afirmando que:

Por lo que se refiere a la responsabilidad por deudas sociales del artículo 367 de la Ley de Sociedades de Capital, se reconocía la existencia de las deudas sociales, la concurrencia de la causa de disolución, el incumplimiento de las obligaciones legales del administrador social y su imputabilidad, pero concurría una causa de exoneración de responsabilidad de conformidad con la doctrina del «riesgo conocido». Así se indicaba que la actora es una sociedad franquiciadora y X.S.L. era la franquiciada, resultando de las comunicaciones electrónicas que la franquiciada era monitorizada de forma permanente y la franquiciadora conocía el riesgo de las operaciones, paralizando el envío de género (ropa) en el momento que se superaban los límites de los avales concedido, por lo que la actora asumió voluntariamente el riesgo. Por todo ello desestimaba la demanda.

En conclusión y a tenor de lo expuesto, la presente relación jurídica de franquicia y su desenvolvimiento permite considerar acreditar la existencia por parte de la franquiciadora (acreedora) de un mayor conocimiento de la situación económica financiera de la franquiciada (deudora), más allá de la información que aparece en las cuentas anuales depositadas en el Registro Mercantil al ser su principal proveedor. Y este conocimiento y situación de control de la deuda por parte de la franquiciadora (mediante el incremento de envío de pedidos) justifica la exoneración de la responsabilidad del administrador social por las deudas sociales del artículo 367 de la Ley de Sociedades de Capital, lo que determina la desestimación del recurso de apelación

La teoría o principio de derecho del Riesgo Conocido/Aceptado, al que se refiere la sentencia, defiende que un daño ocasionado a un tercero, con o sin relación contractual por medio, no se considera antijurídico si la víctima conocía el riesgo y lo asumió voluntariamente. 

Inicialmente se desarrolló esa doctrina en el marco de la responsabilidad extracontractual, quien realiza una actividad de riesgo y se aprovecha de sus beneficios debe asumir sus consecuencias negativas, es decir el riesgo, (cuius commodum, eius incommodum).

Pero la jurisprudencia ha extendido la aplicación de teoría al campo de la responsabilidad contractual, como se muestra en la sentencia que comentamos.

Por lo tanto al conocer el demandante la situación económica y de solvencia de la demandada, por “monitorizar” como franquiciador su actividad y pese a ello, haber decidido mantener la vigencia del contrato, incrementando la deuda, entiende la sentencia que el franquiciador asumió el riesgo, lo que constituyó una causa de exoneración de responsabilidad del administrador. Ahora bien, más preocupante que lo anterior, es que se considerase aplicable esta teoría del “riesgo conocido” a la propia responsabilidad de la sociedad franquiciada, la que pudiera ser exonerada de responsabilidad con fundamento en esa monitorización de sus actividades por le franquiciador.

La conclusión de todo lo anterior es que en base a esta aplicación de la teoría del riesgo conocido, los franquiciadores pueden tener dificultades para reclamar las deudas de la sociedad franquiciada, en caso de insolvencia de la misma, a sus administradores, por lo que es muy aconsejable que a la hora de firmar el contrato de franquicia se exija la garantía solidaria de las posibles y futuras deudas de la franquicia a sus administradores y socios, lo que por otra parte constituye una práctica bastante estandarizada.

De este modo, no entraría en juego la objeción derivada de la teoría del riesgo conocido.

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.

Summary

Phil Knight, the founder of Nike, imported the Japanese brand Onitsuka Tiger into the US market in 1964 and quickly gained a 70% share. When Knight learned Onitsuka was looking for another distributor, he created the Nike brand. This led to two lawsuits between the two companies, but Nike eventually won and became the most successful sportswear brand in the world. This article looks at the lessons to be learned from the dispute, such as how to negotiate an international distribution agreement, contractual exclusivity, minimum turnover clauses, duration of the contract, ownership of trademarks, dispute resolution clauses, and more.

What I talk about in this article

• The Blue Ribbon vs. Onitsuka Tiger dispute and the birth of Nike 
• How to negotiate an international distribution agreement 
• Contractual exclusivity in a commercial distribution agreement 
• Minimum Turnover clauses in distribution contracts
• Duration of the contract and the notice period for termination  
• Ownership of trademarks in commercial distribution contracts
• The importance of mediation in international commercial distribution agreements 
• Dispute resolution clauses in international contracts
• How we can help you 

The Blue Ribbon vs Onitsuka Tiger dispute and the birth of Nike

Why is the most famous sportswear brand in the world Nike and not Onitsuka Tiger?
Shoe Dog is the biography of the creator of Nike, Phil Knight: for lovers of the genre, but not only, the book is really very good and I recommend reading it. 

Moved by his passion for running and intuition that there was a space in the American athletic shoe market, at the time dominated by Adidas, Knight was the first, in 1964, to import into the U.S. a brand of Japanese athletic shoes, Onitsuka Tiger, coming to conquer in 6 years a 70% share of the market. 

The company founded by Knight and his former college track coach, Bill Bowerman, was called Blue Ribbon Sports. 

The business relationship between Blue Ribbon-Nike and the Japanese manufacturer Onitsuka Tiger was, from the beginning, very turbulent, despite the fact that sales of the shoes in the U.S. were going very well and the prospects for growth were positive. 

When, shortly after having renewed the contract with the Japanese manufacturer, Knight learned that Onitsuka was looking for another distributor in the U.S., fearing to be cut out of the market, he decided to look for another supplier in Japan and create his own brand, Nike. 

Upon learning of the Nike project, the Japanese manufacturer challenged Blue Ribbon for violation of the non-competition agreement, which prohibited the distributor from importing other products manufactured in Japan, declaring the immediate termination of the agreement. 

In turn, Blue Ribbon argued that the breach would be Onitsuka Tiger’s, which had started meeting other potential distributors when the contract was still in force and the business was very positive. 

This resulted in two lawsuits, one in Japan and one in the U.S., which could have put a premature end to Nike’s history.   

Fortunately (for Nike) the American judge ruled in favor of the distributor and the dispute was closed with a settlement: Nike thus began the journey that would lead it 15 years later to become the most important sporting goods brand in the world. 

Let’s see what Nike’s history teaches us and what mistakes should be avoided in an international distribution contract. 

How to negotiate an international commercial distribution agreement 

In his biography, Knight writes that he soon regretted tying the future of his company to a hastily written, few-line commercial agreement at the end of a meeting to negotiate the renewal of the distribution contract.  

What did this agreement contain? 

The agreement only provided for the renewal of Blue Ribbon’s right to distribute products exclusively in the USA for another three years. 

It often happens that international distribution contracts are entrusted to verbal agreements or very simple contracts of short duration: the explanation that is usually given is that in this way it is possible to test the commercial relationship, without binding too much to the counterpart. 

This way of doing business, though, is wrong and dangerous: the contract should not be seen as a burden or a constraint, but as a guarantee of the rights of both parties. Not concluding a written contract, or doing so in a very hasty way, means leaving without clear agreements fundamental elements of the future relationship, such as those that led to the dispute between Blue Ribbon and Onitsuka Tiger: commercial targets, investments, ownership of brands. 

If the contract is also international, the need to draw up a complete and balanced agreement is even stronger, given that in the absence of agreements between the parties, or as a supplement to these agreements, a law with which one of the parties is unfamiliar is applied, which is generally the law of the country where the distributor is based.  

Even if you are not in the Blue Ribbon situation, where it was an agreement on which the very existence of the company depended, international contracts should be discussed and negotiated with the help of an expert lawyer who knows the law applicable to the agreement and can help the entrepreneur to identify and negotiate the important clauses of the contract. 

Territorial exclusivity, commercial objectives and minimum turnover targets 

The first reason for conflict between Blue Ribbon and Onitsuka Tiger was the evaluation of sales trends in the US market. 

Onitsuka argued that the turnover was lower than the potential of the U.S. market, while according to Blue Ribbon the sales trend was very positive, since up to that moment it had doubled every year the turnover, conquering an important share of the market sector. 

When Blue Ribbon learned that Onituska was evaluating other candidates for the distribution of its products in the USA and fearing to be soon out of the market, Blue Ribbon prepared the Nike brand as Plan B: when this was discovered by the Japanese manufacturer, the situation precipitated and led to a legal dispute between the parties. 

The dispute could perhaps have been avoided if the parties had agreed upon commercial targets and the contract had included a fairly standard clause in exclusive distribution agreements, i.e. a minimum sales target on the part of the distributor. 

In an exclusive distribution agreement, the manufacturer grants the distributor strong territorial protection against the investments the distributor makes to develop the assigned market. 

In order to balance the concession of exclusivity, it is normal for the producer to ask the distributor for the so-called Guaranteed Minimum Turnover or Minimum Target, which must be reached by the distributor every year in order to maintain the privileged status granted to him. 

If the Minimum Target is not reached, the contract generally provides that the manufacturer has the right to withdraw from the contract (in the case of an open-ended agreement) or not to renew the agreement (if the contract is for a fixed term) or to revoke or restrict the territorial exclusivity. 

In the contract between Blue Ribbon and Onitsuka Tiger, the agreement did not foresee any targets (and in fact the parties disagreed when evaluating the distributor’s results) and had just been renewed for three years: how can minimum turnover targets be foreseen in a multi-year contract? 

In the absence of reliable data, the parties often rely on predetermined percentage increase mechanisms: +10% the second year, + 30% the third, + 50% the fourth, and so on. 

The problem with this automatism is that the targets are agreed without having available the real data on the future trend of product sales, competitors’ sales and the market in general, and can therefore be very distant from the distributor’s current sales possibilities. 

For example, challenging the distributor for not meeting the second or third year’s target in a recessionary economy would certainly be a questionable decision and a likely source of disagreement. 

It would be better to have a clause for consensually setting targets from year to year, stipulating that targets will be agreed between the parties in the light of sales performance in the preceding months, with some advance notice before the end of the current year.  In the event of failure to agree on the new target, the contract may provide for the previous year’s target to be applied, or for the parties to have the right to withdraw, subject to a certain period of notice. 

It should be remembered, on the other hand, that the target can also be used as an incentive for the distributor: it can be provided, for example, that if a certain turnover is achieved, this will enable the agreement to be renewed, or territorial exclusivity to be extended, or certain commercial compensation to be obtained for the following year. 

A final recommendation is to correctly manage the minimum target clause, if present in the contract: it often happens that the manufacturer disputes the failure to reach the target for a certain year, after a long period in which the annual targets had not been reached, or had not been updated, without any consequences. 

In such cases, it is possible that the distributor claims that there has been an implicit waiver of this contractual protection and therefore that the withdrawal is not valid: to avoid disputes on this subject, it is advisable to expressly provide in the Minimum Target clause that the failure to challenge the failure to reach the target for a certain period does not mean that the right to activate the clause in the future is waived. 

The notice period for terminating an international distribution contract

The other dispute between the parties was the violation of a non-compete agreement: the sale of the Nike brand by Blue Ribbon, when the contract prohibited the sale of other shoes manufactured in Japan. 

Onitsuka Tiger claimed that Blue Ribbon had breached the non-compete agreement, while the distributor believed it had no other option, given the manufacturer’s imminent decision to terminate the agreement. 

This type of dispute can be avoided by clearly setting a notice period for termination (or non-renewal): this period has the fundamental function of allowing the parties to prepare for the termination of the relationship and to organize their activities after the termination. 

In particular, in order to avoid misunderstandings such as the one that arose between Blue Ribbon and Onitsuka Tiger, it can be foreseen that during this period the parties will be able to make contact with other potential distributors and producers, and that this does not violate the obligations of exclusivity and non-competition. 

In the case of Blue Ribbon, in fact, the distributor had gone a step beyond the mere search for another supplier, since it had started to sell Nike products while the contract with Onitsuka was still valid: this behavior represents a serious breach of an exclusivity agreement. 

A particular aspect to consider regarding the notice period is the duration: how long does the notice period have to be to be considered fair? In the case of long-standing business relationships, it is important to give the other party sufficient time to reposition themselves in the marketplace, looking for alternative distributors or suppliers, or (as in the case of Blue Ribbon/Nike) to create and launch their own brand. 

The other element to be taken into account, when communicating the termination, is that the notice must be such as to allow the distributor to amortize the investments made to meet its obligations during the contract; in the case of Blue Ribbon, the distributor, at the express request of the manufacturer, had opened a series of mono-brand stores both on the West and East Coast of the U.S.A.. 

A closure of the contract shortly after its renewal and with too short a notice would not have allowed the distributor to reorganize the sales network with a replacement product, forcing the closure of the stores that had sold the Japanese shoes up to that moment. 

Generally, it is advisable to provide for a notice period for withdrawal of at least 6 months, but in international distribution contracts, attention should be paid, in addition to the investments made by the parties, to any specific provisions of the law applicable to the contract (here, for example, an in-depth analysis for sudden termination of contracts in France) or to case law on the subject of withdrawal from commercial relations (in some cases, the term considered appropriate for a long-term sales concession contract can reach 24 months). 

Finally, it is normal that at the time of closing the contract, the distributor is still in possession of stocks of products: this can be problematic, for example because the distributor usually wishes to liquidate the stock (flash sales or sales through web channels with strong discounts) and this can go against the commercial policies of the manufacturer and new distributors. 

In order to avoid this type of situation, a clause that can be included in the distribution contract is that relating to the producer’s right to repurchase existing stock at the end of the contract, already setting the repurchase price (for example, equal to the sale price to the distributor for products of the current season, with a 30% discount for products of the previous season and with a higher discount for products sold more than 24 months previously). 

Trademark Ownership in an International Distribution Agreement 

During the course of the distribution relationship, Blue Ribbon had created a new type of sole for running shoes and coined the trademarks Cortez and Boston for the top models of the collection, which had been very successful among the public, gaining great popularity: at the end of the contract, both parties claimed ownership of the trademarks. 

Situations of this kind frequently occur in international distribution relationships: the distributor registers the manufacturer’s trademark in the country in which it operates, in order to prevent competitors from doing so and to be able to protect the trademark in the case of the sale of counterfeit products; or it happens that the distributor, as in the dispute we are discussing, collaborates in the creation of new trademarks intended for its market.  

At the end of the relationship, in the absence of a clear agreement between the parties, a dispute can arise like the one in the Nike case: who is the owner, producer or distributor?

In order to avoid misunderstandings, the first advice is to register the trademark in all the countries in which the products are distributed, and not only: in the case of China, for example, it is advisable to register it anyway, in order to prevent third parties in bad faith from taking the trademark (for further information see this post on Legalmondo). 

It is also advisable to include in the distribution contract a clause prohibiting the distributor from registering the trademark (or similar trademarks) in the country in which it operates, with express provision for the manufacturer’s right to ask for its transfer should this occur. 

Such a clause would have prevented the dispute between Blue Ribbon and Onitsuka Tiger from arising. 

The facts we are recounting are dated 1976: today, in addition to clarifying the ownership of the trademark and the methods of use by the distributor and its sales network, it is advisable that the contract also regulates the use of the trademark and the distinctive signs of the manufacturer on communication channels, in particular social media. 

It is advisable to clearly stipulate that the manufacturer is the owner of the social media profiles, of the content that is created, and of the data generated by the sales, marketing and communication activity in the country in which the distributor operates, who only has the license to use them, in accordance with the owner’s instructions. 

In addition, it is a good idea for the agreement to establish how the brand will be used and the communication and sales promotion policies in the market, to avoid initiatives that may have negative or counterproductive effects. 

The clause can also be reinforced with the provision of contractual penalties in the event that, at the end of the agreement, the distributor refuses to transfer control of the digital channels and data generated in the course of business. 

Mediation in international commercial distribution contracts 

Another interesting point offered by the Blue Ribbon vs. Onitsuka Tiger case is linked to the management of conflicts in international distribution relationships: situations such as the one we have seen can be effectively resolved through the use of mediation. 

This is an attempt to reconcile the dispute, entrusted to a specialized body or mediator, with the aim of finding an amicable agreement that avoids judicial action. 

Mediation can be provided for in the contract as a first step, before the eventual lawsuit or arbitration, or it can be initiated voluntarily within a judicial or arbitration procedure already in progress. 

The advantages are many: the main one is the possibility to find a commercial solution that allows the continuation of the relationship, instead of just looking for ways for the termination of the commercial relationship between the parties. 

Another interesting aspect of mediation is that of overcoming personal conflicts: in the case of Blue Ribbon vs. Onitsuka, for example, a decisive element in the escalation of problems between the parties was the difficult personal relationship between the CEO of Blue Ribbon and the Export manager of the Japanese manufacturer, aggravated by strong cultural differences. 

The process of mediation introduces a third figure, able to dialogue with the parts and to guide them to look for solutions of mutual interest, that can be decisive to overcome the communication problems or the personal hostilities. 

For those interested in the topic, we refer to this post on Legalmondo and to the replay of a recent webinar on mediation of international conflicts. 

Dispute resolution clauses in international distribution agreements 

The dispute between Blue Ribbon and Onitsuka Tiger led the parties to initiate two parallel lawsuits, one in the US (initiated by the distributor) and one in Japan (rooted by the manufacturer). 

This was possible because the contract did not expressly foresee how any future disputes would be resolved, thus generating a very complicated situation, moreover on two judicial fronts in different countries. 

The clauses that establish which law applies to a contract and how disputes are to be resolved are known as «midnight clauses«, because they are often the last clauses in the contract, negotiated late at night. 

They are, in fact, very important clauses, which must be defined in a conscious way, to avoid solutions that are ineffective or counterproductive. 

How we can help you 

The construction of an international commercial distribution agreement is an important investment, because it sets the rules of the relationship between the parties for the future and provides them with the tools to manage all the situations that will be created in the future collaboration. 

It is essential not only to negotiate and conclude a correct, complete and balanced agreement, but also to know how to manage it over the years, especially when situations of conflict arise. 

Legalmondo offers the possibility to work with lawyers experienced in international commercial distribution in more than 60 countries: write us your needs.

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.

Los franquiciadores extranjeros que firmen contratos de franquicia en España deben tomar buena nota del contenido de la sentencia de la Audiencia Provincial de Cordoba de 20 de noviembre de 2025 y exigir que el socio o los socios y los administradores de la compañía franquiciada garanticen y avalen expresamente el pago de las posibles deudas que genere el contrato de franquicia.

La legislación societaria española establece el principio de responsabilidad de los administradores de las compañías anónimas o de responsabilidad limitada cuando la sociedad se halle en causa de disolución (por ejemplo por pérdidas que reduzcan el patrimonio por debajo del 50% de la cifra de capital social) y pese a ello no convocaren junta para la adopción de las medidas correctoras (disolución o aumento de capital).

En el caso de la sentencia arriba citada, el franquiciador no pudo cobrar a la sociedad franquiciada la deuda derivada del contrato de franquicia por su insolvencia; entonces decidió reclamar al administrador de la sociedad dicha deuda con fundamento en el precepto arriba comentado, es decir, por el hecho de que la sociedad franquiciada estaba en causa de disolución por pérdidas y el administrador no había convocado junta de socios como era su obligación para que los socios decidieran como solventar la situación.

La sentencia que comentamos de la Audiencia de Cordoba confirma la de primera instancia y desestima la demanda del franquiciador contra el administrador único de la sociedad franquiciada afirmando que:

Por lo que se refiere a la responsabilidad por deudas sociales del artículo 367 de la Ley de Sociedades de Capital, se reconocía la existencia de las deudas sociales, la concurrencia de la causa de disolución, el incumplimiento de las obligaciones legales del administrador social y su imputabilidad, pero concurría una causa de exoneración de responsabilidad de conformidad con la doctrina del «riesgo conocido». Así se indicaba que la actora es una sociedad franquiciadora y X.S.L. era la franquiciada, resultando de las comunicaciones electrónicas que la franquiciada era monitorizada de forma permanente y la franquiciadora conocía el riesgo de las operaciones, paralizando el envío de género (ropa) en el momento que se superaban los límites de los avales concedido, por lo que la actora asumió voluntariamente el riesgo. Por todo ello desestimaba la demanda.

En conclusión y a tenor de lo expuesto, la presente relación jurídica de franquicia y su desenvolvimiento permite considerar acreditar la existencia por parte de la franquiciadora (acreedora) de un mayor conocimiento de la situación económica financiera de la franquiciada (deudora), más allá de la información que aparece en las cuentas anuales depositadas en el Registro Mercantil al ser su principal proveedor. Y este conocimiento y situación de control de la deuda por parte de la franquiciadora (mediante el incremento de envío de pedidos) justifica la exoneración de la responsabilidad del administrador social por las deudas sociales del artículo 367 de la Ley de Sociedades de Capital, lo que determina la desestimación del recurso de apelación

La teoría o principio de derecho del Riesgo Conocido/Aceptado, al que se refiere la sentencia, defiende que un daño ocasionado a un tercero, con o sin relación contractual por medio, no se considera antijurídico si la víctima conocía el riesgo y lo asumió voluntariamente. 

Inicialmente se desarrolló esa doctrina en el marco de la responsabilidad extracontractual, quien realiza una actividad de riesgo y se aprovecha de sus beneficios debe asumir sus consecuencias negativas, es decir el riesgo, (cuius commodum, eius incommodum).

Pero la jurisprudencia ha extendido la aplicación de teoría al campo de la responsabilidad contractual, como se muestra en la sentencia que comentamos.

Por lo tanto al conocer el demandante la situación económica y de solvencia de la demandada, por “monitorizar” como franquiciador su actividad y pese a ello, haber decidido mantener la vigencia del contrato, incrementando la deuda, entiende la sentencia que el franquiciador asumió el riesgo, lo que constituyó una causa de exoneración de responsabilidad del administrador. Ahora bien, más preocupante que lo anterior, es que se considerase aplicable esta teoría del “riesgo conocido” a la propia responsabilidad de la sociedad franquiciada, la que pudiera ser exonerada de responsabilidad con fundamento en esa monitorización de sus actividades por le franquiciador.

La conclusión de todo lo anterior es que en base a esta aplicación de la teoría del riesgo conocido, los franquiciadores pueden tener dificultades para reclamar las deudas de la sociedad franquiciada, en caso de insolvencia de la misma, a sus administradores, por lo que es muy aconsejable que a la hora de firmar el contrato de franquicia se exija la garantía solidaria de las posibles y futuras deudas de la franquicia a sus administradores y socios, lo que por otra parte constituye una práctica bastante estandarizada.

De este modo, no entraría en juego la objeción derivada de la teoría del riesgo conocido.

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.

Summary

Phil Knight, the founder of Nike, imported the Japanese brand Onitsuka Tiger into the US market in 1964 and quickly gained a 70% share. When Knight learned Onitsuka was looking for another distributor, he created the Nike brand. This led to two lawsuits between the two companies, but Nike eventually won and became the most successful sportswear brand in the world. This article looks at the lessons to be learned from the dispute, such as how to negotiate an international distribution agreement, contractual exclusivity, minimum turnover clauses, duration of the contract, ownership of trademarks, dispute resolution clauses, and more.

What I talk about in this article

• The Blue Ribbon vs. Onitsuka Tiger dispute and the birth of Nike 
• How to negotiate an international distribution agreement 
• Contractual exclusivity in a commercial distribution agreement 
• Minimum Turnover clauses in distribution contracts
• Duration of the contract and the notice period for termination  
• Ownership of trademarks in commercial distribution contracts
• The importance of mediation in international commercial distribution agreements 
• Dispute resolution clauses in international contracts
• How we can help you 

The Blue Ribbon vs Onitsuka Tiger dispute and the birth of Nike

Why is the most famous sportswear brand in the world Nike and not Onitsuka Tiger?
Shoe Dog is the biography of the creator of Nike, Phil Knight: for lovers of the genre, but not only, the book is really very good and I recommend reading it. 

Moved by his passion for running and intuition that there was a space in the American athletic shoe market, at the time dominated by Adidas, Knight was the first, in 1964, to import into the U.S. a brand of Japanese athletic shoes, Onitsuka Tiger, coming to conquer in 6 years a 70% share of the market. 

The company founded by Knight and his former college track coach, Bill Bowerman, was called Blue Ribbon Sports. 

The business relationship between Blue Ribbon-Nike and the Japanese manufacturer Onitsuka Tiger was, from the beginning, very turbulent, despite the fact that sales of the shoes in the U.S. were going very well and the prospects for growth were positive. 

When, shortly after having renewed the contract with the Japanese manufacturer, Knight learned that Onitsuka was looking for another distributor in the U.S., fearing to be cut out of the market, he decided to look for another supplier in Japan and create his own brand, Nike. 

Upon learning of the Nike project, the Japanese manufacturer challenged Blue Ribbon for violation of the non-competition agreement, which prohibited the distributor from importing other products manufactured in Japan, declaring the immediate termination of the agreement. 

In turn, Blue Ribbon argued that the breach would be Onitsuka Tiger’s, which had started meeting other potential distributors when the contract was still in force and the business was very positive. 

This resulted in two lawsuits, one in Japan and one in the U.S., which could have put a premature end to Nike’s history.   

Fortunately (for Nike) the American judge ruled in favor of the distributor and the dispute was closed with a settlement: Nike thus began the journey that would lead it 15 years later to become the most important sporting goods brand in the world. 

Let’s see what Nike’s history teaches us and what mistakes should be avoided in an international distribution contract. 

How to negotiate an international commercial distribution agreement 

In his biography, Knight writes that he soon regretted tying the future of his company to a hastily written, few-line commercial agreement at the end of a meeting to negotiate the renewal of the distribution contract.  

What did this agreement contain? 

The agreement only provided for the renewal of Blue Ribbon’s right to distribute products exclusively in the USA for another three years. 

It often happens that international distribution contracts are entrusted to verbal agreements or very simple contracts of short duration: the explanation that is usually given is that in this way it is possible to test the commercial relationship, without binding too much to the counterpart. 

This way of doing business, though, is wrong and dangerous: the contract should not be seen as a burden or a constraint, but as a guarantee of the rights of both parties. Not concluding a written contract, or doing so in a very hasty way, means leaving without clear agreements fundamental elements of the future relationship, such as those that led to the dispute between Blue Ribbon and Onitsuka Tiger: commercial targets, investments, ownership of brands. 

If the contract is also international, the need to draw up a complete and balanced agreement is even stronger, given that in the absence of agreements between the parties, or as a supplement to these agreements, a law with which one of the parties is unfamiliar is applied, which is generally the law of the country where the distributor is based.  

Even if you are not in the Blue Ribbon situation, where it was an agreement on which the very existence of the company depended, international contracts should be discussed and negotiated with the help of an expert lawyer who knows the law applicable to the agreement and can help the entrepreneur to identify and negotiate the important clauses of the contract. 

Territorial exclusivity, commercial objectives and minimum turnover targets 

The first reason for conflict between Blue Ribbon and Onitsuka Tiger was the evaluation of sales trends in the US market. 

Onitsuka argued that the turnover was lower than the potential of the U.S. market, while according to Blue Ribbon the sales trend was very positive, since up to that moment it had doubled every year the turnover, conquering an important share of the market sector. 

When Blue Ribbon learned that Onituska was evaluating other candidates for the distribution of its products in the USA and fearing to be soon out of the market, Blue Ribbon prepared the Nike brand as Plan B: when this was discovered by the Japanese manufacturer, the situation precipitated and led to a legal dispute between the parties. 

The dispute could perhaps have been avoided if the parties had agreed upon commercial targets and the contract had included a fairly standard clause in exclusive distribution agreements, i.e. a minimum sales target on the part of the distributor. 

In an exclusive distribution agreement, the manufacturer grants the distributor strong territorial protection against the investments the distributor makes to develop the assigned market. 

In order to balance the concession of exclusivity, it is normal for the producer to ask the distributor for the so-called Guaranteed Minimum Turnover or Minimum Target, which must be reached by the distributor every year in order to maintain the privileged status granted to him. 

If the Minimum Target is not reached, the contract generally provides that the manufacturer has the right to withdraw from the contract (in the case of an open-ended agreement) or not to renew the agreement (if the contract is for a fixed term) or to revoke or restrict the territorial exclusivity. 

In the contract between Blue Ribbon and Onitsuka Tiger, the agreement did not foresee any targets (and in fact the parties disagreed when evaluating the distributor’s results) and had just been renewed for three years: how can minimum turnover targets be foreseen in a multi-year contract? 

In the absence of reliable data, the parties often rely on predetermined percentage increase mechanisms: +10% the second year, + 30% the third, + 50% the fourth, and so on. 

The problem with this automatism is that the targets are agreed without having available the real data on the future trend of product sales, competitors’ sales and the market in general, and can therefore be very distant from the distributor’s current sales possibilities. 

For example, challenging the distributor for not meeting the second or third year’s target in a recessionary economy would certainly be a questionable decision and a likely source of disagreement. 

It would be better to have a clause for consensually setting targets from year to year, stipulating that targets will be agreed between the parties in the light of sales performance in the preceding months, with some advance notice before the end of the current year.  In the event of failure to agree on the new target, the contract may provide for the previous year’s target to be applied, or for the parties to have the right to withdraw, subject to a certain period of notice. 

It should be remembered, on the other hand, that the target can also be used as an incentive for the distributor: it can be provided, for example, that if a certain turnover is achieved, this will enable the agreement to be renewed, or territorial exclusivity to be extended, or certain commercial compensation to be obtained for the following year. 

A final recommendation is to correctly manage the minimum target clause, if present in the contract: it often happens that the manufacturer disputes the failure to reach the target for a certain year, after a long period in which the annual targets had not been reached, or had not been updated, without any consequences. 

In such cases, it is possible that the distributor claims that there has been an implicit waiver of this contractual protection and therefore that the withdrawal is not valid: to avoid disputes on this subject, it is advisable to expressly provide in the Minimum Target clause that the failure to challenge the failure to reach the target for a certain period does not mean that the right to activate the clause in the future is waived. 

The notice period for terminating an international distribution contract

The other dispute between the parties was the violation of a non-compete agreement: the sale of the Nike brand by Blue Ribbon, when the contract prohibited the sale of other shoes manufactured in Japan. 

Onitsuka Tiger claimed that Blue Ribbon had breached the non-compete agreement, while the distributor believed it had no other option, given the manufacturer’s imminent decision to terminate the agreement. 

This type of dispute can be avoided by clearly setting a notice period for termination (or non-renewal): this period has the fundamental function of allowing the parties to prepare for the termination of the relationship and to organize their activities after the termination. 

In particular, in order to avoid misunderstandings such as the one that arose between Blue Ribbon and Onitsuka Tiger, it can be foreseen that during this period the parties will be able to make contact with other potential distributors and producers, and that this does not violate the obligations of exclusivity and non-competition. 

In the case of Blue Ribbon, in fact, the distributor had gone a step beyond the mere search for another supplier, since it had started to sell Nike products while the contract with Onitsuka was still valid: this behavior represents a serious breach of an exclusivity agreement. 

A particular aspect to consider regarding the notice period is the duration: how long does the notice period have to be to be considered fair? In the case of long-standing business relationships, it is important to give the other party sufficient time to reposition themselves in the marketplace, looking for alternative distributors or suppliers, or (as in the case of Blue Ribbon/Nike) to create and launch their own brand. 

The other element to be taken into account, when communicating the termination, is that the notice must be such as to allow the distributor to amortize the investments made to meet its obligations during the contract; in the case of Blue Ribbon, the distributor, at the express request of the manufacturer, had opened a series of mono-brand stores both on the West and East Coast of the U.S.A.. 

A closure of the contract shortly after its renewal and with too short a notice would not have allowed the distributor to reorganize the sales network with a replacement product, forcing the closure of the stores that had sold the Japanese shoes up to that moment. 

Generally, it is advisable to provide for a notice period for withdrawal of at least 6 months, but in international distribution contracts, attention should be paid, in addition to the investments made by the parties, to any specific provisions of the law applicable to the contract (here, for example, an in-depth analysis for sudden termination of contracts in France) or to case law on the subject of withdrawal from commercial relations (in some cases, the term considered appropriate for a long-term sales concession contract can reach 24 months). 

Finally, it is normal that at the time of closing the contract, the distributor is still in possession of stocks of products: this can be problematic, for example because the distributor usually wishes to liquidate the stock (flash sales or sales through web channels with strong discounts) and this can go against the commercial policies of the manufacturer and new distributors. 

In order to avoid this type of situation, a clause that can be included in the distribution contract is that relating to the producer’s right to repurchase existing stock at the end of the contract, already setting the repurchase price (for example, equal to the sale price to the distributor for products of the current season, with a 30% discount for products of the previous season and with a higher discount for products sold more than 24 months previously). 

Trademark Ownership in an International Distribution Agreement 

During the course of the distribution relationship, Blue Ribbon had created a new type of sole for running shoes and coined the trademarks Cortez and Boston for the top models of the collection, which had been very successful among the public, gaining great popularity: at the end of the contract, both parties claimed ownership of the trademarks. 

Situations of this kind frequently occur in international distribution relationships: the distributor registers the manufacturer’s trademark in the country in which it operates, in order to prevent competitors from doing so and to be able to protect the trademark in the case of the sale of counterfeit products; or it happens that the distributor, as in the dispute we are discussing, collaborates in the creation of new trademarks intended for its market.  

At the end of the relationship, in the absence of a clear agreement between the parties, a dispute can arise like the one in the Nike case: who is the owner, producer or distributor?

In order to avoid misunderstandings, the first advice is to register the trademark in all the countries in which the products are distributed, and not only: in the case of China, for example, it is advisable to register it anyway, in order to prevent third parties in bad faith from taking the trademark (for further information see this post on Legalmondo). 

It is also advisable to include in the distribution contract a clause prohibiting the distributor from registering the trademark (or similar trademarks) in the country in which it operates, with express provision for the manufacturer’s right to ask for its transfer should this occur. 

Such a clause would have prevented the dispute between Blue Ribbon and Onitsuka Tiger from arising. 

The facts we are recounting are dated 1976: today, in addition to clarifying the ownership of the trademark and the methods of use by the distributor and its sales network, it is advisable that the contract also regulates the use of the trademark and the distinctive signs of the manufacturer on communication channels, in particular social media. 

It is advisable to clearly stipulate that the manufacturer is the owner of the social media profiles, of the content that is created, and of the data generated by the sales, marketing and communication activity in the country in which the distributor operates, who only has the license to use them, in accordance with the owner’s instructions. 

In addition, it is a good idea for the agreement to establish how the brand will be used and the communication and sales promotion policies in the market, to avoid initiatives that may have negative or counterproductive effects. 

The clause can also be reinforced with the provision of contractual penalties in the event that, at the end of the agreement, the distributor refuses to transfer control of the digital channels and data generated in the course of business. 

Mediation in international commercial distribution contracts 

Another interesting point offered by the Blue Ribbon vs. Onitsuka Tiger case is linked to the management of conflicts in international distribution relationships: situations such as the one we have seen can be effectively resolved through the use of mediation. 

This is an attempt to reconcile the dispute, entrusted to a specialized body or mediator, with the aim of finding an amicable agreement that avoids judicial action. 

Mediation can be provided for in the contract as a first step, before the eventual lawsuit or arbitration, or it can be initiated voluntarily within a judicial or arbitration procedure already in progress. 

The advantages are many: the main one is the possibility to find a commercial solution that allows the continuation of the relationship, instead of just looking for ways for the termination of the commercial relationship between the parties. 

Another interesting aspect of mediation is that of overcoming personal conflicts: in the case of Blue Ribbon vs. Onitsuka, for example, a decisive element in the escalation of problems between the parties was the difficult personal relationship between the CEO of Blue Ribbon and the Export manager of the Japanese manufacturer, aggravated by strong cultural differences. 

The process of mediation introduces a third figure, able to dialogue with the parts and to guide them to look for solutions of mutual interest, that can be decisive to overcome the communication problems or the personal hostilities. 

For those interested in the topic, we refer to this post on Legalmondo and to the replay of a recent webinar on mediation of international conflicts. 

Dispute resolution clauses in international distribution agreements 

The dispute between Blue Ribbon and Onitsuka Tiger led the parties to initiate two parallel lawsuits, one in the US (initiated by the distributor) and one in Japan (rooted by the manufacturer). 

This was possible because the contract did not expressly foresee how any future disputes would be resolved, thus generating a very complicated situation, moreover on two judicial fronts in different countries. 

The clauses that establish which law applies to a contract and how disputes are to be resolved are known as «midnight clauses«, because they are often the last clauses in the contract, negotiated late at night. 

They are, in fact, very important clauses, which must be defined in a conscious way, to avoid solutions that are ineffective or counterproductive. 

How we can help you 

The construction of an international commercial distribution agreement is an important investment, because it sets the rules of the relationship between the parties for the future and provides them with the tools to manage all the situations that will be created in the future collaboration. 

It is essential not only to negotiate and conclude a correct, complete and balanced agreement, but also to know how to manage it over the years, especially when situations of conflict arise. 

Legalmondo offers the possibility to work with lawyers experienced in international commercial distribution in more than 60 countries: write us your needs.

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.

Los franquiciadores extranjeros que firmen contratos de franquicia en España deben tomar buena nota del contenido de la sentencia de la Audiencia Provincial de Cordoba de 20 de noviembre de 2025 y exigir que el socio o los socios y los administradores de la compañía franquiciada garanticen y avalen expresamente el pago de las posibles deudas que genere el contrato de franquicia.

La legislación societaria española establece el principio de responsabilidad de los administradores de las compañías anónimas o de responsabilidad limitada cuando la sociedad se halle en causa de disolución (por ejemplo por pérdidas que reduzcan el patrimonio por debajo del 50% de la cifra de capital social) y pese a ello no convocaren junta para la adopción de las medidas correctoras (disolución o aumento de capital).

En el caso de la sentencia arriba citada, el franquiciador no pudo cobrar a la sociedad franquiciada la deuda derivada del contrato de franquicia por su insolvencia; entonces decidió reclamar al administrador de la sociedad dicha deuda con fundamento en el precepto arriba comentado, es decir, por el hecho de que la sociedad franquiciada estaba en causa de disolución por pérdidas y el administrador no había convocado junta de socios como era su obligación para que los socios decidieran como solventar la situación.

La sentencia que comentamos de la Audiencia de Cordoba confirma la de primera instancia y desestima la demanda del franquiciador contra el administrador único de la sociedad franquiciada afirmando que:

Por lo que se refiere a la responsabilidad por deudas sociales del artículo 367 de la Ley de Sociedades de Capital, se reconocía la existencia de las deudas sociales, la concurrencia de la causa de disolución, el incumplimiento de las obligaciones legales del administrador social y su imputabilidad, pero concurría una causa de exoneración de responsabilidad de conformidad con la doctrina del «riesgo conocido». Así se indicaba que la actora es una sociedad franquiciadora y X.S.L. era la franquiciada, resultando de las comunicaciones electrónicas que la franquiciada era monitorizada de forma permanente y la franquiciadora conocía el riesgo de las operaciones, paralizando el envío de género (ropa) en el momento que se superaban los límites de los avales concedido, por lo que la actora asumió voluntariamente el riesgo. Por todo ello desestimaba la demanda.

En conclusión y a tenor de lo expuesto, la presente relación jurídica de franquicia y su desenvolvimiento permite considerar acreditar la existencia por parte de la franquiciadora (acreedora) de un mayor conocimiento de la situación económica financiera de la franquiciada (deudora), más allá de la información que aparece en las cuentas anuales depositadas en el Registro Mercantil al ser su principal proveedor. Y este conocimiento y situación de control de la deuda por parte de la franquiciadora (mediante el incremento de envío de pedidos) justifica la exoneración de la responsabilidad del administrador social por las deudas sociales del artículo 367 de la Ley de Sociedades de Capital, lo que determina la desestimación del recurso de apelación

La teoría o principio de derecho del Riesgo Conocido/Aceptado, al que se refiere la sentencia, defiende que un daño ocasionado a un tercero, con o sin relación contractual por medio, no se considera antijurídico si la víctima conocía el riesgo y lo asumió voluntariamente. 

Inicialmente se desarrolló esa doctrina en el marco de la responsabilidad extracontractual, quien realiza una actividad de riesgo y se aprovecha de sus beneficios debe asumir sus consecuencias negativas, es decir el riesgo, (cuius commodum, eius incommodum).

Pero la jurisprudencia ha extendido la aplicación de teoría al campo de la responsabilidad contractual, como se muestra en la sentencia que comentamos.

Por lo tanto al conocer el demandante la situación económica y de solvencia de la demandada, por “monitorizar” como franquiciador su actividad y pese a ello, haber decidido mantener la vigencia del contrato, incrementando la deuda, entiende la sentencia que el franquiciador asumió el riesgo, lo que constituyó una causa de exoneración de responsabilidad del administrador. Ahora bien, más preocupante que lo anterior, es que se considerase aplicable esta teoría del “riesgo conocido” a la propia responsabilidad de la sociedad franquiciada, la que pudiera ser exonerada de responsabilidad con fundamento en esa monitorización de sus actividades por le franquiciador.

La conclusión de todo lo anterior es que en base a esta aplicación de la teoría del riesgo conocido, los franquiciadores pueden tener dificultades para reclamar las deudas de la sociedad franquiciada, en caso de insolvencia de la misma, a sus administradores, por lo que es muy aconsejable que a la hora de firmar el contrato de franquicia se exija la garantía solidaria de las posibles y futuras deudas de la franquicia a sus administradores y socios, lo que por otra parte constituye una práctica bastante estandarizada.

De este modo, no entraría en juego la objeción derivada de la teoría del riesgo conocido.

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.

Summary

Phil Knight, the founder of Nike, imported the Japanese brand Onitsuka Tiger into the US market in 1964 and quickly gained a 70% share. When Knight learned Onitsuka was looking for another distributor, he created the Nike brand. This led to two lawsuits between the two companies, but Nike eventually won and became the most successful sportswear brand in the world. This article looks at the lessons to be learned from the dispute, such as how to negotiate an international distribution agreement, contractual exclusivity, minimum turnover clauses, duration of the contract, ownership of trademarks, dispute resolution clauses, and more.

What I talk about in this article

• The Blue Ribbon vs. Onitsuka Tiger dispute and the birth of Nike 
• How to negotiate an international distribution agreement 
• Contractual exclusivity in a commercial distribution agreement 
• Minimum Turnover clauses in distribution contracts
• Duration of the contract and the notice period for termination  
• Ownership of trademarks in commercial distribution contracts
• The importance of mediation in international commercial distribution agreements 
• Dispute resolution clauses in international contracts
• How we can help you 

The Blue Ribbon vs Onitsuka Tiger dispute and the birth of Nike

Why is the most famous sportswear brand in the world Nike and not Onitsuka Tiger?
Shoe Dog is the biography of the creator of Nike, Phil Knight: for lovers of the genre, but not only, the book is really very good and I recommend reading it. 

Moved by his passion for running and intuition that there was a space in the American athletic shoe market, at the time dominated by Adidas, Knight was the first, in 1964, to import into the U.S. a brand of Japanese athletic shoes, Onitsuka Tiger, coming to conquer in 6 years a 70% share of the market. 

The company founded by Knight and his former college track coach, Bill Bowerman, was called Blue Ribbon Sports. 

The business relationship between Blue Ribbon-Nike and the Japanese manufacturer Onitsuka Tiger was, from the beginning, very turbulent, despite the fact that sales of the shoes in the U.S. were going very well and the prospects for growth were positive. 

When, shortly after having renewed the contract with the Japanese manufacturer, Knight learned that Onitsuka was looking for another distributor in the U.S., fearing to be cut out of the market, he decided to look for another supplier in Japan and create his own brand, Nike. 

Upon learning of the Nike project, the Japanese manufacturer challenged Blue Ribbon for violation of the non-competition agreement, which prohibited the distributor from importing other products manufactured in Japan, declaring the immediate termination of the agreement. 

In turn, Blue Ribbon argued that the breach would be Onitsuka Tiger’s, which had started meeting other potential distributors when the contract was still in force and the business was very positive. 

This resulted in two lawsuits, one in Japan and one in the U.S., which could have put a premature end to Nike’s history.   

Fortunately (for Nike) the American judge ruled in favor of the distributor and the dispute was closed with a settlement: Nike thus began the journey that would lead it 15 years later to become the most important sporting goods brand in the world. 

Let’s see what Nike’s history teaches us and what mistakes should be avoided in an international distribution contract. 

How to negotiate an international commercial distribution agreement 

In his biography, Knight writes that he soon regretted tying the future of his company to a hastily written, few-line commercial agreement at the end of a meeting to negotiate the renewal of the distribution contract.  

What did this agreement contain? 

The agreement only provided for the renewal of Blue Ribbon’s right to distribute products exclusively in the USA for another three years. 

It often happens that international distribution contracts are entrusted to verbal agreements or very simple contracts of short duration: the explanation that is usually given is that in this way it is possible to test the commercial relationship, without binding too much to the counterpart. 

This way of doing business, though, is wrong and dangerous: the contract should not be seen as a burden or a constraint, but as a guarantee of the rights of both parties. Not concluding a written contract, or doing so in a very hasty way, means leaving without clear agreements fundamental elements of the future relationship, such as those that led to the dispute between Blue Ribbon and Onitsuka Tiger: commercial targets, investments, ownership of brands. 

If the contract is also international, the need to draw up a complete and balanced agreement is even stronger, given that in the absence of agreements between the parties, or as a supplement to these agreements, a law with which one of the parties is unfamiliar is applied, which is generally the law of the country where the distributor is based.  

Even if you are not in the Blue Ribbon situation, where it was an agreement on which the very existence of the company depended, international contracts should be discussed and negotiated with the help of an expert lawyer who knows the law applicable to the agreement and can help the entrepreneur to identify and negotiate the important clauses of the contract. 

Territorial exclusivity, commercial objectives and minimum turnover targets 

The first reason for conflict between Blue Ribbon and Onitsuka Tiger was the evaluation of sales trends in the US market. 

Onitsuka argued that the turnover was lower than the potential of the U.S. market, while according to Blue Ribbon the sales trend was very positive, since up to that moment it had doubled every year the turnover, conquering an important share of the market sector. 

When Blue Ribbon learned that Onituska was evaluating other candidates for the distribution of its products in the USA and fearing to be soon out of the market, Blue Ribbon prepared the Nike brand as Plan B: when this was discovered by the Japanese manufacturer, the situation precipitated and led to a legal dispute between the parties. 

The dispute could perhaps have been avoided if the parties had agreed upon commercial targets and the contract had included a fairly standard clause in exclusive distribution agreements, i.e. a minimum sales target on the part of the distributor. 

In an exclusive distribution agreement, the manufacturer grants the distributor strong territorial protection against the investments the distributor makes to develop the assigned market. 

In order to balance the concession of exclusivity, it is normal for the producer to ask the distributor for the so-called Guaranteed Minimum Turnover or Minimum Target, which must be reached by the distributor every year in order to maintain the privileged status granted to him. 

If the Minimum Target is not reached, the contract generally provides that the manufacturer has the right to withdraw from the contract (in the case of an open-ended agreement) or not to renew the agreement (if the contract is for a fixed term) or to revoke or restrict the territorial exclusivity. 

In the contract between Blue Ribbon and Onitsuka Tiger, the agreement did not foresee any targets (and in fact the parties disagreed when evaluating the distributor’s results) and had just been renewed for three years: how can minimum turnover targets be foreseen in a multi-year contract? 

In the absence of reliable data, the parties often rely on predetermined percentage increase mechanisms: +10% the second year, + 30% the third, + 50% the fourth, and so on. 

The problem with this automatism is that the targets are agreed without having available the real data on the future trend of product sales, competitors’ sales and the market in general, and can therefore be very distant from the distributor’s current sales possibilities. 

For example, challenging the distributor for not meeting the second or third year’s target in a recessionary economy would certainly be a questionable decision and a likely source of disagreement. 

It would be better to have a clause for consensually setting targets from year to year, stipulating that targets will be agreed between the parties in the light of sales performance in the preceding months, with some advance notice before the end of the current year.  In the event of failure to agree on the new target, the contract may provide for the previous year’s target to be applied, or for the parties to have the right to withdraw, subject to a certain period of notice. 

It should be remembered, on the other hand, that the target can also be used as an incentive for the distributor: it can be provided, for example, that if a certain turnover is achieved, this will enable the agreement to be renewed, or territorial exclusivity to be extended, or certain commercial compensation to be obtained for the following year. 

A final recommendation is to correctly manage the minimum target clause, if present in the contract: it often happens that the manufacturer disputes the failure to reach the target for a certain year, after a long period in which the annual targets had not been reached, or had not been updated, without any consequences. 

In such cases, it is possible that the distributor claims that there has been an implicit waiver of this contractual protection and therefore that the withdrawal is not valid: to avoid disputes on this subject, it is advisable to expressly provide in the Minimum Target clause that the failure to challenge the failure to reach the target for a certain period does not mean that the right to activate the clause in the future is waived. 

The notice period for terminating an international distribution contract

The other dispute between the parties was the violation of a non-compete agreement: the sale of the Nike brand by Blue Ribbon, when the contract prohibited the sale of other shoes manufactured in Japan. 

Onitsuka Tiger claimed that Blue Ribbon had breached the non-compete agreement, while the distributor believed it had no other option, given the manufacturer’s imminent decision to terminate the agreement. 

This type of dispute can be avoided by clearly setting a notice period for termination (or non-renewal): this period has the fundamental function of allowing the parties to prepare for the termination of the relationship and to organize their activities after the termination. 

In particular, in order to avoid misunderstandings such as the one that arose between Blue Ribbon and Onitsuka Tiger, it can be foreseen that during this period the parties will be able to make contact with other potential distributors and producers, and that this does not violate the obligations of exclusivity and non-competition. 

In the case of Blue Ribbon, in fact, the distributor had gone a step beyond the mere search for another supplier, since it had started to sell Nike products while the contract with Onitsuka was still valid: this behavior represents a serious breach of an exclusivity agreement. 

A particular aspect to consider regarding the notice period is the duration: how long does the notice period have to be to be considered fair? In the case of long-standing business relationships, it is important to give the other party sufficient time to reposition themselves in the marketplace, looking for alternative distributors or suppliers, or (as in the case of Blue Ribbon/Nike) to create and launch their own brand. 

The other element to be taken into account, when communicating the termination, is that the notice must be such as to allow the distributor to amortize the investments made to meet its obligations during the contract; in the case of Blue Ribbon, the distributor, at the express request of the manufacturer, had opened a series of mono-brand stores both on the West and East Coast of the U.S.A.. 

A closure of the contract shortly after its renewal and with too short a notice would not have allowed the distributor to reorganize the sales network with a replacement product, forcing the closure of the stores that had sold the Japanese shoes up to that moment. 

Generally, it is advisable to provide for a notice period for withdrawal of at least 6 months, but in international distribution contracts, attention should be paid, in addition to the investments made by the parties, to any specific provisions of the law applicable to the contract (here, for example, an in-depth analysis for sudden termination of contracts in France) or to case law on the subject of withdrawal from commercial relations (in some cases, the term considered appropriate for a long-term sales concession contract can reach 24 months). 

Finally, it is normal that at the time of closing the contract, the distributor is still in possession of stocks of products: this can be problematic, for example because the distributor usually wishes to liquidate the stock (flash sales or sales through web channels with strong discounts) and this can go against the commercial policies of the manufacturer and new distributors. 

In order to avoid this type of situation, a clause that can be included in the distribution contract is that relating to the producer’s right to repurchase existing stock at the end of the contract, already setting the repurchase price (for example, equal to the sale price to the distributor for products of the current season, with a 30% discount for products of the previous season and with a higher discount for products sold more than 24 months previously). 

Trademark Ownership in an International Distribution Agreement 

During the course of the distribution relationship, Blue Ribbon had created a new type of sole for running shoes and coined the trademarks Cortez and Boston for the top models of the collection, which had been very successful among the public, gaining great popularity: at the end of the contract, both parties claimed ownership of the trademarks. 

Situations of this kind frequently occur in international distribution relationships: the distributor registers the manufacturer’s trademark in the country in which it operates, in order to prevent competitors from doing so and to be able to protect the trademark in the case of the sale of counterfeit products; or it happens that the distributor, as in the dispute we are discussing, collaborates in the creation of new trademarks intended for its market.  

At the end of the relationship, in the absence of a clear agreement between the parties, a dispute can arise like the one in the Nike case: who is the owner, producer or distributor?

In order to avoid misunderstandings, the first advice is to register the trademark in all the countries in which the products are distributed, and not only: in the case of China, for example, it is advisable to register it anyway, in order to prevent third parties in bad faith from taking the trademark (for further information see this post on Legalmondo). 

It is also advisable to include in the distribution contract a clause prohibiting the distributor from registering the trademark (or similar trademarks) in the country in which it operates, with express provision for the manufacturer’s right to ask for its transfer should this occur. 

Such a clause would have prevented the dispute between Blue Ribbon and Onitsuka Tiger from arising. 

The facts we are recounting are dated 1976: today, in addition to clarifying the ownership of the trademark and the methods of use by the distributor and its sales network, it is advisable that the contract also regulates the use of the trademark and the distinctive signs of the manufacturer on communication channels, in particular social media. 

It is advisable to clearly stipulate that the manufacturer is the owner of the social media profiles, of the content that is created, and of the data generated by the sales, marketing and communication activity in the country in which the distributor operates, who only has the license to use them, in accordance with the owner’s instructions. 

In addition, it is a good idea for the agreement to establish how the brand will be used and the communication and sales promotion policies in the market, to avoid initiatives that may have negative or counterproductive effects. 

The clause can also be reinforced with the provision of contractual penalties in the event that, at the end of the agreement, the distributor refuses to transfer control of the digital channels and data generated in the course of business. 

Mediation in international commercial distribution contracts 

Another interesting point offered by the Blue Ribbon vs. Onitsuka Tiger case is linked to the management of conflicts in international distribution relationships: situations such as the one we have seen can be effectively resolved through the use of mediation. 

This is an attempt to reconcile the dispute, entrusted to a specialized body or mediator, with the aim of finding an amicable agreement that avoids judicial action. 

Mediation can be provided for in the contract as a first step, before the eventual lawsuit or arbitration, or it can be initiated voluntarily within a judicial or arbitration procedure already in progress. 

The advantages are many: the main one is the possibility to find a commercial solution that allows the continuation of the relationship, instead of just looking for ways for the termination of the commercial relationship between the parties. 

Another interesting aspect of mediation is that of overcoming personal conflicts: in the case of Blue Ribbon vs. Onitsuka, for example, a decisive element in the escalation of problems between the parties was the difficult personal relationship between the CEO of Blue Ribbon and the Export manager of the Japanese manufacturer, aggravated by strong cultural differences. 

The process of mediation introduces a third figure, able to dialogue with the parts and to guide them to look for solutions of mutual interest, that can be decisive to overcome the communication problems or the personal hostilities. 

For those interested in the topic, we refer to this post on Legalmondo and to the replay of a recent webinar on mediation of international conflicts. 

Dispute resolution clauses in international distribution agreements 

The dispute between Blue Ribbon and Onitsuka Tiger led the parties to initiate two parallel lawsuits, one in the US (initiated by the distributor) and one in Japan (rooted by the manufacturer). 

This was possible because the contract did not expressly foresee how any future disputes would be resolved, thus generating a very complicated situation, moreover on two judicial fronts in different countries. 

The clauses that establish which law applies to a contract and how disputes are to be resolved are known as «midnight clauses«, because they are often the last clauses in the contract, negotiated late at night. 

They are, in fact, very important clauses, which must be defined in a conscious way, to avoid solutions that are ineffective or counterproductive. 

How we can help you 

The construction of an international commercial distribution agreement is an important investment, because it sets the rules of the relationship between the parties for the future and provides them with the tools to manage all the situations that will be created in the future collaboration. 

It is essential not only to negotiate and conclude a correct, complete and balanced agreement, but also to know how to manage it over the years, especially when situations of conflict arise. 

Legalmondo offers the possibility to work with lawyers experienced in international commercial distribution in more than 60 countries: write us your needs.

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.

Los franquiciadores extranjeros que firmen contratos de franquicia en España deben tomar buena nota del contenido de la sentencia de la Audiencia Provincial de Cordoba de 20 de noviembre de 2025 y exigir que el socio o los socios y los administradores de la compañía franquiciada garanticen y avalen expresamente el pago de las posibles deudas que genere el contrato de franquicia.

La legislación societaria española establece el principio de responsabilidad de los administradores de las compañías anónimas o de responsabilidad limitada cuando la sociedad se halle en causa de disolución (por ejemplo por pérdidas que reduzcan el patrimonio por debajo del 50% de la cifra de capital social) y pese a ello no convocaren junta para la adopción de las medidas correctoras (disolución o aumento de capital).

En el caso de la sentencia arriba citada, el franquiciador no pudo cobrar a la sociedad franquiciada la deuda derivada del contrato de franquicia por su insolvencia; entonces decidió reclamar al administrador de la sociedad dicha deuda con fundamento en el precepto arriba comentado, es decir, por el hecho de que la sociedad franquiciada estaba en causa de disolución por pérdidas y el administrador no había convocado junta de socios como era su obligación para que los socios decidieran como solventar la situación.

La sentencia que comentamos de la Audiencia de Cordoba confirma la de primera instancia y desestima la demanda del franquiciador contra el administrador único de la sociedad franquiciada afirmando que:

Por lo que se refiere a la responsabilidad por deudas sociales del artículo 367 de la Ley de Sociedades de Capital, se reconocía la existencia de las deudas sociales, la concurrencia de la causa de disolución, el incumplimiento de las obligaciones legales del administrador social y su imputabilidad, pero concurría una causa de exoneración de responsabilidad de conformidad con la doctrina del «riesgo conocido». Así se indicaba que la actora es una sociedad franquiciadora y X.S.L. era la franquiciada, resultando de las comunicaciones electrónicas que la franquiciada era monitorizada de forma permanente y la franquiciadora conocía el riesgo de las operaciones, paralizando el envío de género (ropa) en el momento que se superaban los límites de los avales concedido, por lo que la actora asumió voluntariamente el riesgo. Por todo ello desestimaba la demanda.

En conclusión y a tenor de lo expuesto, la presente relación jurídica de franquicia y su desenvolvimiento permite considerar acreditar la existencia por parte de la franquiciadora (acreedora) de un mayor conocimiento de la situación económica financiera de la franquiciada (deudora), más allá de la información que aparece en las cuentas anuales depositadas en el Registro Mercantil al ser su principal proveedor. Y este conocimiento y situación de control de la deuda por parte de la franquiciadora (mediante el incremento de envío de pedidos) justifica la exoneración de la responsabilidad del administrador social por las deudas sociales del artículo 367 de la Ley de Sociedades de Capital, lo que determina la desestimación del recurso de apelación

La teoría o principio de derecho del Riesgo Conocido/Aceptado, al que se refiere la sentencia, defiende que un daño ocasionado a un tercero, con o sin relación contractual por medio, no se considera antijurídico si la víctima conocía el riesgo y lo asumió voluntariamente. 

Inicialmente se desarrolló esa doctrina en el marco de la responsabilidad extracontractual, quien realiza una actividad de riesgo y se aprovecha de sus beneficios debe asumir sus consecuencias negativas, es decir el riesgo, (cuius commodum, eius incommodum).

Pero la jurisprudencia ha extendido la aplicación de teoría al campo de la responsabilidad contractual, como se muestra en la sentencia que comentamos.

Por lo tanto al conocer el demandante la situación económica y de solvencia de la demandada, por “monitorizar” como franquiciador su actividad y pese a ello, haber decidido mantener la vigencia del contrato, incrementando la deuda, entiende la sentencia que el franquiciador asumió el riesgo, lo que constituyó una causa de exoneración de responsabilidad del administrador. Ahora bien, más preocupante que lo anterior, es que se considerase aplicable esta teoría del “riesgo conocido” a la propia responsabilidad de la sociedad franquiciada, la que pudiera ser exonerada de responsabilidad con fundamento en esa monitorización de sus actividades por le franquiciador.

La conclusión de todo lo anterior es que en base a esta aplicación de la teoría del riesgo conocido, los franquiciadores pueden tener dificultades para reclamar las deudas de la sociedad franquiciada, en caso de insolvencia de la misma, a sus administradores, por lo que es muy aconsejable que a la hora de firmar el contrato de franquicia se exija la garantía solidaria de las posibles y futuras deudas de la franquicia a sus administradores y socios, lo que por otra parte constituye una práctica bastante estandarizada.

De este modo, no entraría en juego la objeción derivada de la teoría del riesgo conocido.

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.

Summary

Phil Knight, the founder of Nike, imported the Japanese brand Onitsuka Tiger into the US market in 1964 and quickly gained a 70% share. When Knight learned Onitsuka was looking for another distributor, he created the Nike brand. This led to two lawsuits between the two companies, but Nike eventually won and became the most successful sportswear brand in the world. This article looks at the lessons to be learned from the dispute, such as how to negotiate an international distribution agreement, contractual exclusivity, minimum turnover clauses, duration of the contract, ownership of trademarks, dispute resolution clauses, and more.

What I talk about in this article

• The Blue Ribbon vs. Onitsuka Tiger dispute and the birth of Nike 
• How to negotiate an international distribution agreement 
• Contractual exclusivity in a commercial distribution agreement 
• Minimum Turnover clauses in distribution contracts
• Duration of the contract and the notice period for termination  
• Ownership of trademarks in commercial distribution contracts
• The importance of mediation in international commercial distribution agreements 
• Dispute resolution clauses in international contracts
• How we can help you 

The Blue Ribbon vs Onitsuka Tiger dispute and the birth of Nike

Why is the most famous sportswear brand in the world Nike and not Onitsuka Tiger?
Shoe Dog is the biography of the creator of Nike, Phil Knight: for lovers of the genre, but not only, the book is really very good and I recommend reading it. 

Moved by his passion for running and intuition that there was a space in the American athletic shoe market, at the time dominated by Adidas, Knight was the first, in 1964, to import into the U.S. a brand of Japanese athletic shoes, Onitsuka Tiger, coming to conquer in 6 years a 70% share of the market. 

The company founded by Knight and his former college track coach, Bill Bowerman, was called Blue Ribbon Sports. 

The business relationship between Blue Ribbon-Nike and the Japanese manufacturer Onitsuka Tiger was, from the beginning, very turbulent, despite the fact that sales of the shoes in the U.S. were going very well and the prospects for growth were positive. 

When, shortly after having renewed the contract with the Japanese manufacturer, Knight learned that Onitsuka was looking for another distributor in the U.S., fearing to be cut out of the market, he decided to look for another supplier in Japan and create his own brand, Nike. 

Upon learning of the Nike project, the Japanese manufacturer challenged Blue Ribbon for violation of the non-competition agreement, which prohibited the distributor from importing other products manufactured in Japan, declaring the immediate termination of the agreement. 

In turn, Blue Ribbon argued that the breach would be Onitsuka Tiger’s, which had started meeting other potential distributors when the contract was still in force and the business was very positive. 

This resulted in two lawsuits, one in Japan and one in the U.S., which could have put a premature end to Nike’s history.   

Fortunately (for Nike) the American judge ruled in favor of the distributor and the dispute was closed with a settlement: Nike thus began the journey that would lead it 15 years later to become the most important sporting goods brand in the world. 

Let’s see what Nike’s history teaches us and what mistakes should be avoided in an international distribution contract. 

How to negotiate an international commercial distribution agreement 

In his biography, Knight writes that he soon regretted tying the future of his company to a hastily written, few-line commercial agreement at the end of a meeting to negotiate the renewal of the distribution contract.  

What did this agreement contain? 

The agreement only provided for the renewal of Blue Ribbon’s right to distribute products exclusively in the USA for another three years. 

It often happens that international distribution contracts are entrusted to verbal agreements or very simple contracts of short duration: the explanation that is usually given is that in this way it is possible to test the commercial relationship, without binding too much to the counterpart. 

This way of doing business, though, is wrong and dangerous: the contract should not be seen as a burden or a constraint, but as a guarantee of the rights of both parties. Not concluding a written contract, or doing so in a very hasty way, means leaving without clear agreements fundamental elements of the future relationship, such as those that led to the dispute between Blue Ribbon and Onitsuka Tiger: commercial targets, investments, ownership of brands. 

If the contract is also international, the need to draw up a complete and balanced agreement is even stronger, given that in the absence of agreements between the parties, or as a supplement to these agreements, a law with which one of the parties is unfamiliar is applied, which is generally the law of the country where the distributor is based.  

Even if you are not in the Blue Ribbon situation, where it was an agreement on which the very existence of the company depended, international contracts should be discussed and negotiated with the help of an expert lawyer who knows the law applicable to the agreement and can help the entrepreneur to identify and negotiate the important clauses of the contract. 

Territorial exclusivity, commercial objectives and minimum turnover targets 

The first reason for conflict between Blue Ribbon and Onitsuka Tiger was the evaluation of sales trends in the US market. 

Onitsuka argued that the turnover was lower than the potential of the U.S. market, while according to Blue Ribbon the sales trend was very positive, since up to that moment it had doubled every year the turnover, conquering an important share of the market sector. 

When Blue Ribbon learned that Onituska was evaluating other candidates for the distribution of its products in the USA and fearing to be soon out of the market, Blue Ribbon prepared the Nike brand as Plan B: when this was discovered by the Japanese manufacturer, the situation precipitated and led to a legal dispute between the parties. 

The dispute could perhaps have been avoided if the parties had agreed upon commercial targets and the contract had included a fairly standard clause in exclusive distribution agreements, i.e. a minimum sales target on the part of the distributor. 

In an exclusive distribution agreement, the manufacturer grants the distributor strong territorial protection against the investments the distributor makes to develop the assigned market. 

In order to balance the concession of exclusivity, it is normal for the producer to ask the distributor for the so-called Guaranteed Minimum Turnover or Minimum Target, which must be reached by the distributor every year in order to maintain the privileged status granted to him. 

If the Minimum Target is not reached, the contract generally provides that the manufacturer has the right to withdraw from the contract (in the case of an open-ended agreement) or not to renew the agreement (if the contract is for a fixed term) or to revoke or restrict the territorial exclusivity. 

In the contract between Blue Ribbon and Onitsuka Tiger, the agreement did not foresee any targets (and in fact the parties disagreed when evaluating the distributor’s results) and had just been renewed for three years: how can minimum turnover targets be foreseen in a multi-year contract? 

In the absence of reliable data, the parties often rely on predetermined percentage increase mechanisms: +10% the second year, + 30% the third, + 50% the fourth, and so on. 

The problem with this automatism is that the targets are agreed without having available the real data on the future trend of product sales, competitors’ sales and the market in general, and can therefore be very distant from the distributor’s current sales possibilities. 

For example, challenging the distributor for not meeting the second or third year’s target in a recessionary economy would certainly be a questionable decision and a likely source of disagreement. 

It would be better to have a clause for consensually setting targets from year to year, stipulating that targets will be agreed between the parties in the light of sales performance in the preceding months, with some advance notice before the end of the current year.  In the event of failure to agree on the new target, the contract may provide for the previous year’s target to be applied, or for the parties to have the right to withdraw, subject to a certain period of notice. 

It should be remembered, on the other hand, that the target can also be used as an incentive for the distributor: it can be provided, for example, that if a certain turnover is achieved, this will enable the agreement to be renewed, or territorial exclusivity to be extended, or certain commercial compensation to be obtained for the following year. 

A final recommendation is to correctly manage the minimum target clause, if present in the contract: it often happens that the manufacturer disputes the failure to reach the target for a certain year, after a long period in which the annual targets had not been reached, or had not been updated, without any consequences. 

In such cases, it is possible that the distributor claims that there has been an implicit waiver of this contractual protection and therefore that the withdrawal is not valid: to avoid disputes on this subject, it is advisable to expressly provide in the Minimum Target clause that the failure to challenge the failure to reach the target for a certain period does not mean that the right to activate the clause in the future is waived. 

The notice period for terminating an international distribution contract

The other dispute between the parties was the violation of a non-compete agreement: the sale of the Nike brand by Blue Ribbon, when the contract prohibited the sale of other shoes manufactured in Japan. 

Onitsuka Tiger claimed that Blue Ribbon had breached the non-compete agreement, while the distributor believed it had no other option, given the manufacturer’s imminent decision to terminate the agreement. 

This type of dispute can be avoided by clearly setting a notice period for termination (or non-renewal): this period has the fundamental function of allowing the parties to prepare for the termination of the relationship and to organize their activities after the termination. 

In particular, in order to avoid misunderstandings such as the one that arose between Blue Ribbon and Onitsuka Tiger, it can be foreseen that during this period the parties will be able to make contact with other potential distributors and producers, and that this does not violate the obligations of exclusivity and non-competition. 

In the case of Blue Ribbon, in fact, the distributor had gone a step beyond the mere search for another supplier, since it had started to sell Nike products while the contract with Onitsuka was still valid: this behavior represents a serious breach of an exclusivity agreement. 

A particular aspect to consider regarding the notice period is the duration: how long does the notice period have to be to be considered fair? In the case of long-standing business relationships, it is important to give the other party sufficient time to reposition themselves in the marketplace, looking for alternative distributors or suppliers, or (as in the case of Blue Ribbon/Nike) to create and launch their own brand. 

The other element to be taken into account, when communicating the termination, is that the notice must be such as to allow the distributor to amortize the investments made to meet its obligations during the contract; in the case of Blue Ribbon, the distributor, at the express request of the manufacturer, had opened a series of mono-brand stores both on the West and East Coast of the U.S.A.. 

A closure of the contract shortly after its renewal and with too short a notice would not have allowed the distributor to reorganize the sales network with a replacement product, forcing the closure of the stores that had sold the Japanese shoes up to that moment. 

Generally, it is advisable to provide for a notice period for withdrawal of at least 6 months, but in international distribution contracts, attention should be paid, in addition to the investments made by the parties, to any specific provisions of the law applicable to the contract (here, for example, an in-depth analysis for sudden termination of contracts in France) or to case law on the subject of withdrawal from commercial relations (in some cases, the term considered appropriate for a long-term sales concession contract can reach 24 months). 

Finally, it is normal that at the time of closing the contract, the distributor is still in possession of stocks of products: this can be problematic, for example because the distributor usually wishes to liquidate the stock (flash sales or sales through web channels with strong discounts) and this can go against the commercial policies of the manufacturer and new distributors. 

In order to avoid this type of situation, a clause that can be included in the distribution contract is that relating to the producer’s right to repurchase existing stock at the end of the contract, already setting the repurchase price (for example, equal to the sale price to the distributor for products of the current season, with a 30% discount for products of the previous season and with a higher discount for products sold more than 24 months previously). 

Trademark Ownership in an International Distribution Agreement 

During the course of the distribution relationship, Blue Ribbon had created a new type of sole for running shoes and coined the trademarks Cortez and Boston for the top models of the collection, which had been very successful among the public, gaining great popularity: at the end of the contract, both parties claimed ownership of the trademarks. 

Situations of this kind frequently occur in international distribution relationships: the distributor registers the manufacturer’s trademark in the country in which it operates, in order to prevent competitors from doing so and to be able to protect the trademark in the case of the sale of counterfeit products; or it happens that the distributor, as in the dispute we are discussing, collaborates in the creation of new trademarks intended for its market.  

At the end of the relationship, in the absence of a clear agreement between the parties, a dispute can arise like the one in the Nike case: who is the owner, producer or distributor?

In order to avoid misunderstandings, the first advice is to register the trademark in all the countries in which the products are distributed, and not only: in the case of China, for example, it is advisable to register it anyway, in order to prevent third parties in bad faith from taking the trademark (for further information see this post on Legalmondo). 

It is also advisable to include in the distribution contract a clause prohibiting the distributor from registering the trademark (or similar trademarks) in the country in which it operates, with express provision for the manufacturer’s right to ask for its transfer should this occur. 

Such a clause would have prevented the dispute between Blue Ribbon and Onitsuka Tiger from arising. 

The facts we are recounting are dated 1976: today, in addition to clarifying the ownership of the trademark and the methods of use by the distributor and its sales network, it is advisable that the contract also regulates the use of the trademark and the distinctive signs of the manufacturer on communication channels, in particular social media. 

It is advisable to clearly stipulate that the manufacturer is the owner of the social media profiles, of the content that is created, and of the data generated by the sales, marketing and communication activity in the country in which the distributor operates, who only has the license to use them, in accordance with the owner’s instructions. 

In addition, it is a good idea for the agreement to establish how the brand will be used and the communication and sales promotion policies in the market, to avoid initiatives that may have negative or counterproductive effects. 

The clause can also be reinforced with the provision of contractual penalties in the event that, at the end of the agreement, the distributor refuses to transfer control of the digital channels and data generated in the course of business. 

Mediation in international commercial distribution contracts 

Another interesting point offered by the Blue Ribbon vs. Onitsuka Tiger case is linked to the management of conflicts in international distribution relationships: situations such as the one we have seen can be effectively resolved through the use of mediation. 

This is an attempt to reconcile the dispute, entrusted to a specialized body or mediator, with the aim of finding an amicable agreement that avoids judicial action. 

Mediation can be provided for in the contract as a first step, before the eventual lawsuit or arbitration, or it can be initiated voluntarily within a judicial or arbitration procedure already in progress. 

The advantages are many: the main one is the possibility to find a commercial solution that allows the continuation of the relationship, instead of just looking for ways for the termination of the commercial relationship between the parties. 

Another interesting aspect of mediation is that of overcoming personal conflicts: in the case of Blue Ribbon vs. Onitsuka, for example, a decisive element in the escalation of problems between the parties was the difficult personal relationship between the CEO of Blue Ribbon and the Export manager of the Japanese manufacturer, aggravated by strong cultural differences. 

The process of mediation introduces a third figure, able to dialogue with the parts and to guide them to look for solutions of mutual interest, that can be decisive to overcome the communication problems or the personal hostilities. 

For those interested in the topic, we refer to this post on Legalmondo and to the replay of a recent webinar on mediation of international conflicts. 

Dispute resolution clauses in international distribution agreements 

The dispute between Blue Ribbon and Onitsuka Tiger led the parties to initiate two parallel lawsuits, one in the US (initiated by the distributor) and one in Japan (rooted by the manufacturer). 

This was possible because the contract did not expressly foresee how any future disputes would be resolved, thus generating a very complicated situation, moreover on two judicial fronts in different countries. 

The clauses that establish which law applies to a contract and how disputes are to be resolved are known as «midnight clauses«, because they are often the last clauses in the contract, negotiated late at night. 

They are, in fact, very important clauses, which must be defined in a conscious way, to avoid solutions that are ineffective or counterproductive. 

How we can help you 

The construction of an international commercial distribution agreement is an important investment, because it sets the rules of the relationship between the parties for the future and provides them with the tools to manage all the situations that will be created in the future collaboration. 

It is essential not only to negotiate and conclude a correct, complete and balanced agreement, but also to know how to manage it over the years, especially when situations of conflict arise. 

Legalmondo offers the possibility to work with lawyers experienced in international commercial distribution in more than 60 countries: write us your needs.

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.

Los franquiciadores extranjeros que firmen contratos de franquicia en España deben tomar buena nota del contenido de la sentencia de la Audiencia Provincial de Cordoba de 20 de noviembre de 2025 y exigir que el socio o los socios y los administradores de la compañía franquiciada garanticen y avalen expresamente el pago de las posibles deudas que genere el contrato de franquicia.

La legislación societaria española establece el principio de responsabilidad de los administradores de las compañías anónimas o de responsabilidad limitada cuando la sociedad se halle en causa de disolución (por ejemplo por pérdidas que reduzcan el patrimonio por debajo del 50% de la cifra de capital social) y pese a ello no convocaren junta para la adopción de las medidas correctoras (disolución o aumento de capital).

En el caso de la sentencia arriba citada, el franquiciador no pudo cobrar a la sociedad franquiciada la deuda derivada del contrato de franquicia por su insolvencia; entonces decidió reclamar al administrador de la sociedad dicha deuda con fundamento en el precepto arriba comentado, es decir, por el hecho de que la sociedad franquiciada estaba en causa de disolución por pérdidas y el administrador no había convocado junta de socios como era su obligación para que los socios decidieran como solventar la situación.

La sentencia que comentamos de la Audiencia de Cordoba confirma la de primera instancia y desestima la demanda del franquiciador contra el administrador único de la sociedad franquiciada afirmando que:

Por lo que se refiere a la responsabilidad por deudas sociales del artículo 367 de la Ley de Sociedades de Capital, se reconocía la existencia de las deudas sociales, la concurrencia de la causa de disolución, el incumplimiento de las obligaciones legales del administrador social y su imputabilidad, pero concurría una causa de exoneración de responsabilidad de conformidad con la doctrina del «riesgo conocido». Así se indicaba que la actora es una sociedad franquiciadora y X.S.L. era la franquiciada, resultando de las comunicaciones electrónicas que la franquiciada era monitorizada de forma permanente y la franquiciadora conocía el riesgo de las operaciones, paralizando el envío de género (ropa) en el momento que se superaban los límites de los avales concedido, por lo que la actora asumió voluntariamente el riesgo. Por todo ello desestimaba la demanda.

En conclusión y a tenor de lo expuesto, la presente relación jurídica de franquicia y su desenvolvimiento permite considerar acreditar la existencia por parte de la franquiciadora (acreedora) de un mayor conocimiento de la situación económica financiera de la franquiciada (deudora), más allá de la información que aparece en las cuentas anuales depositadas en el Registro Mercantil al ser su principal proveedor. Y este conocimiento y situación de control de la deuda por parte de la franquiciadora (mediante el incremento de envío de pedidos) justifica la exoneración de la responsabilidad del administrador social por las deudas sociales del artículo 367 de la Ley de Sociedades de Capital, lo que determina la desestimación del recurso de apelación

La teoría o principio de derecho del Riesgo Conocido/Aceptado, al que se refiere la sentencia, defiende que un daño ocasionado a un tercero, con o sin relación contractual por medio, no se considera antijurídico si la víctima conocía el riesgo y lo asumió voluntariamente. 

Inicialmente se desarrolló esa doctrina en el marco de la responsabilidad extracontractual, quien realiza una actividad de riesgo y se aprovecha de sus beneficios debe asumir sus consecuencias negativas, es decir el riesgo, (cuius commodum, eius incommodum).

Pero la jurisprudencia ha extendido la aplicación de teoría al campo de la responsabilidad contractual, como se muestra en la sentencia que comentamos.

Por lo tanto al conocer el demandante la situación económica y de solvencia de la demandada, por “monitorizar” como franquiciador su actividad y pese a ello, haber decidido mantener la vigencia del contrato, incrementando la deuda, entiende la sentencia que el franquiciador asumió el riesgo, lo que constituyó una causa de exoneración de responsabilidad del administrador. Ahora bien, más preocupante que lo anterior, es que se considerase aplicable esta teoría del “riesgo conocido” a la propia responsabilidad de la sociedad franquiciada, la que pudiera ser exonerada de responsabilidad con fundamento en esa monitorización de sus actividades por le franquiciador.

La conclusión de todo lo anterior es que en base a esta aplicación de la teoría del riesgo conocido, los franquiciadores pueden tener dificultades para reclamar las deudas de la sociedad franquiciada, en caso de insolvencia de la misma, a sus administradores, por lo que es muy aconsejable que a la hora de firmar el contrato de franquicia se exija la garantía solidaria de las posibles y futuras deudas de la franquicia a sus administradores y socios, lo que por otra parte constituye una práctica bastante estandarizada.

De este modo, no entraría en juego la objeción derivada de la teoría del riesgo conocido.

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.

Summary

Phil Knight, the founder of Nike, imported the Japanese brand Onitsuka Tiger into the US market in 1964 and quickly gained a 70% share. When Knight learned Onitsuka was looking for another distributor, he created the Nike brand. This led to two lawsuits between the two companies, but Nike eventually won and became the most successful sportswear brand in the world. This article looks at the lessons to be learned from the dispute, such as how to negotiate an international distribution agreement, contractual exclusivity, minimum turnover clauses, duration of the contract, ownership of trademarks, dispute resolution clauses, and more.

What I talk about in this article

• The Blue Ribbon vs. Onitsuka Tiger dispute and the birth of Nike 
• How to negotiate an international distribution agreement 
• Contractual exclusivity in a commercial distribution agreement 
• Minimum Turnover clauses in distribution contracts
• Duration of the contract and the notice period for termination  
• Ownership of trademarks in commercial distribution contracts
• The importance of mediation in international commercial distribution agreements 
• Dispute resolution clauses in international contracts
• How we can help you 

The Blue Ribbon vs Onitsuka Tiger dispute and the birth of Nike

Why is the most famous sportswear brand in the world Nike and not Onitsuka Tiger?
Shoe Dog is the biography of the creator of Nike, Phil Knight: for lovers of the genre, but not only, the book is really very good and I recommend reading it. 

Moved by his passion for running and intuition that there was a space in the American athletic shoe market, at the time dominated by Adidas, Knight was the first, in 1964, to import into the U.S. a brand of Japanese athletic shoes, Onitsuka Tiger, coming to conquer in 6 years a 70% share of the market. 

The company founded by Knight and his former college track coach, Bill Bowerman, was called Blue Ribbon Sports. 

The business relationship between Blue Ribbon-Nike and the Japanese manufacturer Onitsuka Tiger was, from the beginning, very turbulent, despite the fact that sales of the shoes in the U.S. were going very well and the prospects for growth were positive. 

When, shortly after having renewed the contract with the Japanese manufacturer, Knight learned that Onitsuka was looking for another distributor in the U.S., fearing to be cut out of the market, he decided to look for another supplier in Japan and create his own brand, Nike. 

Upon learning of the Nike project, the Japanese manufacturer challenged Blue Ribbon for violation of the non-competition agreement, which prohibited the distributor from importing other products manufactured in Japan, declaring the immediate termination of the agreement. 

In turn, Blue Ribbon argued that the breach would be Onitsuka Tiger’s, which had started meeting other potential distributors when the contract was still in force and the business was very positive. 

This resulted in two lawsuits, one in Japan and one in the U.S., which could have put a premature end to Nike’s history.   

Fortunately (for Nike) the American judge ruled in favor of the distributor and the dispute was closed with a settlement: Nike thus began the journey that would lead it 15 years later to become the most important sporting goods brand in the world. 

Let’s see what Nike’s history teaches us and what mistakes should be avoided in an international distribution contract. 

How to negotiate an international commercial distribution agreement 

In his biography, Knight writes that he soon regretted tying the future of his company to a hastily written, few-line commercial agreement at the end of a meeting to negotiate the renewal of the distribution contract.  

What did this agreement contain? 

The agreement only provided for the renewal of Blue Ribbon’s right to distribute products exclusively in the USA for another three years. 

It often happens that international distribution contracts are entrusted to verbal agreements or very simple contracts of short duration: the explanation that is usually given is that in this way it is possible to test the commercial relationship, without binding too much to the counterpart. 

This way of doing business, though, is wrong and dangerous: the contract should not be seen as a burden or a constraint, but as a guarantee of the rights of both parties. Not concluding a written contract, or doing so in a very hasty way, means leaving without clear agreements fundamental elements of the future relationship, such as those that led to the dispute between Blue Ribbon and Onitsuka Tiger: commercial targets, investments, ownership of brands. 

If the contract is also international, the need to draw up a complete and balanced agreement is even stronger, given that in the absence of agreements between the parties, or as a supplement to these agreements, a law with which one of the parties is unfamiliar is applied, which is generally the law of the country where the distributor is based.  

Even if you are not in the Blue Ribbon situation, where it was an agreement on which the very existence of the company depended, international contracts should be discussed and negotiated with the help of an expert lawyer who knows the law applicable to the agreement and can help the entrepreneur to identify and negotiate the important clauses of the contract. 

Territorial exclusivity, commercial objectives and minimum turnover targets 

The first reason for conflict between Blue Ribbon and Onitsuka Tiger was the evaluation of sales trends in the US market. 

Onitsuka argued that the turnover was lower than the potential of the U.S. market, while according to Blue Ribbon the sales trend was very positive, since up to that moment it had doubled every year the turnover, conquering an important share of the market sector. 

When Blue Ribbon learned that Onituska was evaluating other candidates for the distribution of its products in the USA and fearing to be soon out of the market, Blue Ribbon prepared the Nike brand as Plan B: when this was discovered by the Japanese manufacturer, the situation precipitated and led to a legal dispute between the parties. 

The dispute could perhaps have been avoided if the parties had agreed upon commercial targets and the contract had included a fairly standard clause in exclusive distribution agreements, i.e. a minimum sales target on the part of the distributor. 

In an exclusive distribution agreement, the manufacturer grants the distributor strong territorial protection against the investments the distributor makes to develop the assigned market. 

In order to balance the concession of exclusivity, it is normal for the producer to ask the distributor for the so-called Guaranteed Minimum Turnover or Minimum Target, which must be reached by the distributor every year in order to maintain the privileged status granted to him. 

If the Minimum Target is not reached, the contract generally provides that the manufacturer has the right to withdraw from the contract (in the case of an open-ended agreement) or not to renew the agreement (if the contract is for a fixed term) or to revoke or restrict the territorial exclusivity. 

In the contract between Blue Ribbon and Onitsuka Tiger, the agreement did not foresee any targets (and in fact the parties disagreed when evaluating the distributor’s results) and had just been renewed for three years: how can minimum turnover targets be foreseen in a multi-year contract? 

In the absence of reliable data, the parties often rely on predetermined percentage increase mechanisms: +10% the second year, + 30% the third, + 50% the fourth, and so on. 

The problem with this automatism is that the targets are agreed without having available the real data on the future trend of product sales, competitors’ sales and the market in general, and can therefore be very distant from the distributor’s current sales possibilities. 

For example, challenging the distributor for not meeting the second or third year’s target in a recessionary economy would certainly be a questionable decision and a likely source of disagreement. 

It would be better to have a clause for consensually setting targets from year to year, stipulating that targets will be agreed between the parties in the light of sales performance in the preceding months, with some advance notice before the end of the current year.  In the event of failure to agree on the new target, the contract may provide for the previous year’s target to be applied, or for the parties to have the right to withdraw, subject to a certain period of notice. 

It should be remembered, on the other hand, that the target can also be used as an incentive for the distributor: it can be provided, for example, that if a certain turnover is achieved, this will enable the agreement to be renewed, or territorial exclusivity to be extended, or certain commercial compensation to be obtained for the following year. 

A final recommendation is to correctly manage the minimum target clause, if present in the contract: it often happens that the manufacturer disputes the failure to reach the target for a certain year, after a long period in which the annual targets had not been reached, or had not been updated, without any consequences. 

In such cases, it is possible that the distributor claims that there has been an implicit waiver of this contractual protection and therefore that the withdrawal is not valid: to avoid disputes on this subject, it is advisable to expressly provide in the Minimum Target clause that the failure to challenge the failure to reach the target for a certain period does not mean that the right to activate the clause in the future is waived. 

The notice period for terminating an international distribution contract

The other dispute between the parties was the violation of a non-compete agreement: the sale of the Nike brand by Blue Ribbon, when the contract prohibited the sale of other shoes manufactured in Japan. 

Onitsuka Tiger claimed that Blue Ribbon had breached the non-compete agreement, while the distributor believed it had no other option, given the manufacturer’s imminent decision to terminate the agreement. 

This type of dispute can be avoided by clearly setting a notice period for termination (or non-renewal): this period has the fundamental function of allowing the parties to prepare for the termination of the relationship and to organize their activities after the termination. 

In particular, in order to avoid misunderstandings such as the one that arose between Blue Ribbon and Onitsuka Tiger, it can be foreseen that during this period the parties will be able to make contact with other potential distributors and producers, and that this does not violate the obligations of exclusivity and non-competition. 

In the case of Blue Ribbon, in fact, the distributor had gone a step beyond the mere search for another supplier, since it had started to sell Nike products while the contract with Onitsuka was still valid: this behavior represents a serious breach of an exclusivity agreement. 

A particular aspect to consider regarding the notice period is the duration: how long does the notice period have to be to be considered fair? In the case of long-standing business relationships, it is important to give the other party sufficient time to reposition themselves in the marketplace, looking for alternative distributors or suppliers, or (as in the case of Blue Ribbon/Nike) to create and launch their own brand. 

The other element to be taken into account, when communicating the termination, is that the notice must be such as to allow the distributor to amortize the investments made to meet its obligations during the contract; in the case of Blue Ribbon, the distributor, at the express request of the manufacturer, had opened a series of mono-brand stores both on the West and East Coast of the U.S.A.. 

A closure of the contract shortly after its renewal and with too short a notice would not have allowed the distributor to reorganize the sales network with a replacement product, forcing the closure of the stores that had sold the Japanese shoes up to that moment. 

Generally, it is advisable to provide for a notice period for withdrawal of at least 6 months, but in international distribution contracts, attention should be paid, in addition to the investments made by the parties, to any specific provisions of the law applicable to the contract (here, for example, an in-depth analysis for sudden termination of contracts in France) or to case law on the subject of withdrawal from commercial relations (in some cases, the term considered appropriate for a long-term sales concession contract can reach 24 months). 

Finally, it is normal that at the time of closing the contract, the distributor is still in possession of stocks of products: this can be problematic, for example because the distributor usually wishes to liquidate the stock (flash sales or sales through web channels with strong discounts) and this can go against the commercial policies of the manufacturer and new distributors. 

In order to avoid this type of situation, a clause that can be included in the distribution contract is that relating to the producer’s right to repurchase existing stock at the end of the contract, already setting the repurchase price (for example, equal to the sale price to the distributor for products of the current season, with a 30% discount for products of the previous season and with a higher discount for products sold more than 24 months previously). 

Trademark Ownership in an International Distribution Agreement 

During the course of the distribution relationship, Blue Ribbon had created a new type of sole for running shoes and coined the trademarks Cortez and Boston for the top models of the collection, which had been very successful among the public, gaining great popularity: at the end of the contract, both parties claimed ownership of the trademarks. 

Situations of this kind frequently occur in international distribution relationships: the distributor registers the manufacturer’s trademark in the country in which it operates, in order to prevent competitors from doing so and to be able to protect the trademark in the case of the sale of counterfeit products; or it happens that the distributor, as in the dispute we are discussing, collaborates in the creation of new trademarks intended for its market.  

At the end of the relationship, in the absence of a clear agreement between the parties, a dispute can arise like the one in the Nike case: who is the owner, producer or distributor?

In order to avoid misunderstandings, the first advice is to register the trademark in all the countries in which the products are distributed, and not only: in the case of China, for example, it is advisable to register it anyway, in order to prevent third parties in bad faith from taking the trademark (for further information see this post on Legalmondo). 

It is also advisable to include in the distribution contract a clause prohibiting the distributor from registering the trademark (or similar trademarks) in the country in which it operates, with express provision for the manufacturer’s right to ask for its transfer should this occur. 

Such a clause would have prevented the dispute between Blue Ribbon and Onitsuka Tiger from arising. 

The facts we are recounting are dated 1976: today, in addition to clarifying the ownership of the trademark and the methods of use by the distributor and its sales network, it is advisable that the contract also regulates the use of the trademark and the distinctive signs of the manufacturer on communication channels, in particular social media. 

It is advisable to clearly stipulate that the manufacturer is the owner of the social media profiles, of the content that is created, and of the data generated by the sales, marketing and communication activity in the country in which the distributor operates, who only has the license to use them, in accordance with the owner’s instructions. 

In addition, it is a good idea for the agreement to establish how the brand will be used and the communication and sales promotion policies in the market, to avoid initiatives that may have negative or counterproductive effects. 

The clause can also be reinforced with the provision of contractual penalties in the event that, at the end of the agreement, the distributor refuses to transfer control of the digital channels and data generated in the course of business. 

Mediation in international commercial distribution contracts 

Another interesting point offered by the Blue Ribbon vs. Onitsuka Tiger case is linked to the management of conflicts in international distribution relationships: situations such as the one we have seen can be effectively resolved through the use of mediation. 

This is an attempt to reconcile the dispute, entrusted to a specialized body or mediator, with the aim of finding an amicable agreement that avoids judicial action. 

Mediation can be provided for in the contract as a first step, before the eventual lawsuit or arbitration, or it can be initiated voluntarily within a judicial or arbitration procedure already in progress. 

The advantages are many: the main one is the possibility to find a commercial solution that allows the continuation of the relationship, instead of just looking for ways for the termination of the commercial relationship between the parties. 

Another interesting aspect of mediation is that of overcoming personal conflicts: in the case of Blue Ribbon vs. Onitsuka, for example, a decisive element in the escalation of problems between the parties was the difficult personal relationship between the CEO of Blue Ribbon and the Export manager of the Japanese manufacturer, aggravated by strong cultural differences. 

The process of mediation introduces a third figure, able to dialogue with the parts and to guide them to look for solutions of mutual interest, that can be decisive to overcome the communication problems or the personal hostilities. 

For those interested in the topic, we refer to this post on Legalmondo and to the replay of a recent webinar on mediation of international conflicts. 

Dispute resolution clauses in international distribution agreements 

The dispute between Blue Ribbon and Onitsuka Tiger led the parties to initiate two parallel lawsuits, one in the US (initiated by the distributor) and one in Japan (rooted by the manufacturer). 

This was possible because the contract did not expressly foresee how any future disputes would be resolved, thus generating a very complicated situation, moreover on two judicial fronts in different countries. 

The clauses that establish which law applies to a contract and how disputes are to be resolved are known as «midnight clauses«, because they are often the last clauses in the contract, negotiated late at night. 

They are, in fact, very important clauses, which must be defined in a conscious way, to avoid solutions that are ineffective or counterproductive. 

How we can help you 

The construction of an international commercial distribution agreement is an important investment, because it sets the rules of the relationship between the parties for the future and provides them with the tools to manage all the situations that will be created in the future collaboration. 

It is essential not only to negotiate and conclude a correct, complete and balanced agreement, but also to know how to manage it over the years, especially when situations of conflict arise. 

Legalmondo offers the possibility to work with lawyers experienced in international commercial distribution in more than 60 countries: write us your needs.

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.