Israel – Termination of international business

4 de septiembre de 2018

  • Israel
  • Contratos de distribución
  • Litigios

On 1 January, the new Packaging Act (“Verpackungsgesetz”) will replace the existing Packaging Ordinance (“Verpackungsverordnung”). Non-compliance with the new rules may have very unpleasant consequences.

For those who sell packaged goods to end consumers in Germany it is high noon: they have to adapt to the new packaging law, which comes into force on January 1, 2019.

The main objective of the new law is that in the future all concerned parties will have to take responsibility and bear the costs of disposing their packaging. The legislator also wants to achieve the increase of the recycling rate of paper, plastic, metal or glass packaging, and to use as many readily recyclable materials as possible. Therefore, the fee that producers or distributors must pay for disposal will in future not only depend on the quantity and material type, but also more on the recyclability of the packaging.

Who is affected by this law?

Manufacturers, online dealers and distributors of packaged goods of all kinds.

Affected are all so-called initial distributors of packaging, which typically end up at the private end consumer. These can be manufacturers, online dealers and distributors of packaged goods of all kinds, whether food, electrical appliances or furniture.

All of them, if they place packaging on the market for the first time, must register with one of the dual systems already today and, depending on the quantity and material of the packaging waste, pay a participation fee to the German take-back system.

It is new from next year on that they additionally have to register with the Central Agency Packaging Register and specify the amount of waste.

This information will be publicly available. By doing so, the legislator wants to create transparency and ensure that all those who place «packaging» on the market fulfill their obligations.

Also new is that the fees, which so far have been simply calculated according to quantity and type of material, should in future also depend on how well a material can be recycled.

For example: Cardboard boxes, which usually consist of two-thirds of waste paper, are easily recyclable, as are aluminium cans, which can be reused to 100 percent. By contrast, the notorious coffee-to-go cups are not recyclable because they consist of a quasi-inseparable composite material.

How exactly the gradations will look is not yet certain, as the dual systems still work on the implementation.

Further innovations for beverage manufacturers and distributors

The law contains several other changes that are particularly important for beverage manufacturers and distributors. The compulsory deposit for disposable containers will be extended to include a few types of beverages that were previously exempted, such as carbonated fruit and vegetable nectars. A new duty has been introduced for retailers, who must point out «with clearly visible signs» on disposable and reusable beverage packaging.As from 1st of January 2019 companies must also file the so-called Declaration of Compliance (“Vollstaendigkeitserklaerung”) with the Central Agency Packaging Register and not anymore with the respective local Chamber of Industry and Commerce.

What is the Declaration of Compliance?

A Declaration of Compliance is a verification concerning the volumes of sales packaging placed into the market by a manufacturer / distributor within one calendar year.

The filing of the Declaration of Compliance, however, only affects larger manufacturers, since the de minimis limits are set quite high in this respect. For paper, cardboard or carton it is about 80 tons per year.

Pre-registration is already possible as from September 2018. It is important to note, however, that every company involved in the system must perform the registration and data reporting «personally», meaning that this process may not be transferred to third parties.

The respective database run by the Central Agency Packaging Register is called LUCID. Manufacturers, online dealers or initial distributors who preregister with LUCID will receive a provisional registration number, which will be sent to the Dual system with which they can sign a contract. There are currently nine companies offering this. Manufacturers who preregister in 2018 will automatically receive a registration confirmation from the Central Agency Packaging Register at the beginning of 2019. The registration including the indication of quantities is free and can be done online.

The Central Agency Packaging Register is also responsible to monitor compliance with the regulations. However, at the end of the day, everyone can check the respective compliance as LUCID is a transparent register and open to everyone to search the register for specific manufacturers and brands.

The law explains why this can have quite unpleasant consequences:

In case the registration is omitted, there is automatically a ban on distribution of the packaging and there is a threat of fines to be imposed which may range up to 100.000 €! Due to the publicity of the register, agents not complying with the law may have to expect that their goods will be discontinued in the German trade.

Still unclear issues

The definition of packaging covered by this law is not quite clear. Transport packaging such as that used by a manufacturer for delivery to the dealer and disposed of there, for example, is not affected by the obligation to participate at the system and the new registration obligation. This packaging does not end up at the private end consumer. But what about wine boxes, for example? They are often only transport packaging, but some customers may take a whole box of their favorite wine with them. In addition, hotels and restaurants, such as those supplied by a retailer, are considered by law to be private end consumers.

The author of this post is Olga Dimopoulou

In a recent decision on the 24th of October 2018 (n°18-D-23), the French Competition Authority (Autorité de la Concurrence, aka AdlC) fined the Stihl company (leader in mechanized culture products) for his practices in his selective distribution network. Stihl managed to restrict the sale of its products by its authorized distributors on their own website and to prohibit them from marketing them on third-party platforms.

The ruling is considered by the AdlC as having «vocation to clarify the framework applicable in France for the different sectors and products, beyond the sole sector of the mechanized culture».

In this case the network implemented by the supplier was a selective distribution network. Therefore, AdlC’s position can only concern the implementation of a selective distribution network and is not applicable to an exclusive distribution network (see our Update Distribution/Competition, April 2018).

  1. The lawfulness of the selective distribution network

The Authority follows the traditional analysis of validity of a selective distribution network. First, it highlights that selection of resellers was based on objective criteria such as qualitative nature, applied in a uniform manner and without any discrimination.

Then, the Authority had to determine whether the qualitative criterion conditioning the lawfulness of the selective distribution system was fulfilled or not. The Authority has decided that the fact that products in question are of a delicate assembly and that some of them even present risks for safety of users, justifies setting up a network of selective distribution.

  1. The lawfulness of the ban on selling technical products on third-party platforms

The decision of the AdlC was especially expected on this point because it had to take into account rulings rendered by the CJEU and then by the Paris Court of Appeal in the Coty cases ((CJUE 6/12/17, affaire 230/16; Cour d’appel de Paris, pôle 5, ch 4, 28 février 2018, n° 16/02263). The question was: the right of suppliers to prohibit their authorized distributors from distributing their products on third-party platforms is limited to luxury goods only (the Coty hypothesis) or could be extended to include others products? The hypothesis of this extension had already been addressed by other courts in Europe and also by the Advocate General before the CJEU (see our Update Distribution/Competition, December 2017) and then by the European Commission.

In a nutshell the Authority extends the Coty case law to technical products whether they are dangerous or not.

First of all, the Authority notes that «prohibition to sell on platforms contributes to preserving the safety of consumers and to guaranteeing the brand image and the quality of the products concerned».

Then, the Authority checked whether this restriction did not go beyond what is necessary in regards to characteristics of products in question. It notes that in the case of third-party platforms, this restriction allows supplier to control that its distributors comply with requirements of distribution network.

Finally, the AdlC checked whether this prohibition was not disproportionate, and in this case, noted that there is no disproportion in so far as distribution on third-party marketplaces is not a main marketing channel for mechanized culture products.

This result (validation of the ban on the sale of products on third-party platforms) may allow many economic operators to believe legitimately that the scope of the Coty case law can be broad.

  1. Prohibition of restrictions on resale of products on distributors’ websites

However the AdlC has refused to approve the clause restricting resale of products by distributors on their own websites.

In this case, if customers of the distributors could place an order online, they had to, for products with a certain dangerous nature (such as chainsaw, pruner, brushcutter, etc.) either come to withdraw the product at a (physical) sell point owned by distributor or to be delivered by the distributor. Distributor had indeed underwritten a complete obligation to «put in hand» the machine, including the oral communication of usage instructions and a demonstration.

The AdlC decided that this obligation to put in hand was actually to cancel advantages attached to Internet selling and thus to prohibit purely and simply Internet selling. According to the Authority, this restriction went beyond what is necessary to preserve consumer’s health.

The AdlC had to determine whether this restriction was a restriction by object or effect. According to the Authority, the restriction at stake reduced the ability of distributors to sell products outside their usual customers catchment area, and as such should be characterized as a competitive restriction by object.

On possible exemptions issues, the Authority first rejects the possibility of category exemption within the meaning of the EU Block Exemption Regulation No 330/2010, the anti-competitive practice being comparable to a restriction characterized by passive sales within the meaning of Article 4, para. (c). Possibility of an individual exemption was also rejected by the Authority after examining any efficiency gains related to this «put in hand» obligation.

The Authority could have taken advantage of this particular case, to refine the Pierre Fabre / Bang & Olufsen case law and validate and update sales restrictions on the Internet when the proper nature or quality of products justifies such a restriction.

In summary, the marketing of products involving high technicality or which tend to be dangerous by using it:

  • justifies the implementation of a selective distribution network;
  • may be prohibited on third party platforms (if the selective distribution network is considered lawful);
  • could not be restricted on the websites of authorized distributors of a lawful selective network, for lack of «efficiency gain» in favor of consumers, according to a very (too?) strict position of the AdlC.

On this last point, it will probably be necessary to wait for a clearer solution given by the Court of Appeal of Paris (in front of which a recourse is now pending) or the Court of Cassation.

Very frequently, different business settings present the opportunity to sign a Non-Disclosure Agreement (“NDA”) and a Memorandum of Understanding (“MoU”) or Letter of Intent (“LoI”), so much so that these three acronyms – NDA, MoU and Lol – are now commonly used, particularly throughout international negotiations.

However, often times, these contracts are used in an improper way and with different purposes than those for which they were established in international commercial praxis, with the result that they are either not useful because they do not effectively protect the parties’ interests, or are counterproductive.

We shall start by taking a look at the characteristics of the Non-Disclosure Agreement – NDA – and how it should be used.

What is a NDA?

The NDA is an agreement whose function is to protect the confidential information that the parties (generally identified, respectively as the “Disclosing Party” and the “Receiving Party”) intend sharing, in different possible scenarios: forwarding of information for a preliminary due diligence relating to an investment, the evaluation of commercial data for a distribution contract, technical specifications related to a certain product that is subject of transfer of technology etc.

The first step of the negotiations, in fact, often requires that different types of information whether technical, financial or commercial, are made available by one or both parties, and the need for this information to remain confidential (hereinafter the “Confidential Information”) during and after the conclusion of the negotiations.

NDA – Who are the parties?

Right from the recitals of the agreement, it is very important to correctly identify the parties obliged to safeguard the information and maintain its confidentiality, especially when group companies are involved, and where the interlocutors may be many and located in different countries. In such cases, it is advisable to oblige the Receiving Party to guarantee confidentiality by all the companies by means of a specific clause. It is also important that the agreement accurately indicates the people belonging to the Receiving Party’s organization (such as: employees, technical consultants, experts, collaborators, etc.) who have a right to access the information, if possible by signing a confidentiality agreement by all the people involved.

NDA – What is Confidential Information?

The use of recycled NDA templates, found on forms or proposed by the counterparty is certainly not a recommended practice, but unfortunately one that is very widespread. These templates are very often generic and include broad definitions of Confidential Information as well as very detailed lists which actually include all contents of a business activity, often including areas that are not applicable to the object of the activity being negotiated, or information that is actually not reserved.

The problem regarding these templates is that it is difficult, ex post, to verify whether certain information  would have been included in the Confidential Information, for example either because it would be difficult to determine whether the Receiving Party would have already been in possession before the signing of the NDA, or because the information would not have been expressly mentioned in a clause that contains a very detailed list, but which does not include the individual piece of information that is of interest, or lastly because after the signing of the NDA, the Confidential Information would have been shared using non-secure and non-traceable procedures (for example as an email attachment).

The best way to proceed is that of identifying in a very specific way only the information that needs to be shared, listing the documents in an attachment to the NDA, thereafter making them available in a format that leaves no doubt regarding their confidentiality, for example by marking them with a watermark or stamp “Confidential under NDA”. Furthermore, a good praxis is to provide access to the Confidential Information only through a secure way (such as a reserved cloud , accessible only through an individual user name and password that is given to authorized people).

NDA – Prohibition from using the Confidential Information

Often times through the standard NDA templates, the Receiving Party is only obliged to maintain the Confidential Information reserved, without being prohibited from its use which – especially in cases of competitor companies – may be more dangerous than divulging the information: imagine technology development or patents based on data acquired, or the use of lists of clients or other commercial information. To highlight and strengthen this obligation it would be more correct to name the document Non-Disclosure and Non-Use Agreement (“NDNUA”).

NDA – Duration

The function of the NDA is to protect the Confidential Information for the entire time during which it needs to be shared between the Parties. It is therefore important to clearly indicate the last moment the information will be used and – in the event that the Receiving Party is in possession of a copy of the Confidential Information – ensure that the Receiving Party returns or destroys the documents and shall maintain the Information reserved and shall refrain from using the Information for a few months (better years) following the termination of the NDA.

Breach of the NDA

Attempting to quantify the damages resulting from a breach of the confidentiality clause is generally very complex: it may therefore be useful to provide for a penalty clause, that establishes a certain amount for the damage deriving from a contractual non-fulfilment. To this effect it is important to consider that the estimate of the penalty shall be reasonable in relation to the damage assumed to derive from the breach of confidentiality, and that different types of penalties can be established according to different cases of non-fulfilment (for example, registration or counterfeit of a patent through the use of shared technical information, or contact with certain business partners).

There is also another advantage inserting a penalty clause in the NDA: if during the negotiations the Receiving Party objects to the clause or requests it to be reduced, it may indicate a mental reservation of default, and in any case is symptomatic of a fear of having to pay this amount, which would have no reason to exist if the party intended abiding strictly to the contractual obligations.

NDA – Litigation, jurisdiction and applicable law

Even in this case there is an unfortunate practice, which is that of relegating this type of clause to the end of the agreement (concerning the so-called midnight clauses, to this effect you may refer to this post on  legalmondo) and thus not dedicate enough attention to its contents, which may lead to adopting clauses that are completely wrong (or worse still, null).

In reality this is a very important provision, which leads to ensuring contractual enforcement and/or obtaining a judicial decision that may be executed in a rapid and effective way. There is no solution that applies to all cases and the individual  negotiation need to be considered: for example in an NDA with a Chinese counterpart it may be counterproductive to choose the Italian jurisdiction and apply Italian law, given that in the event of non-fulfilment it is usually necessary to take legal action and enforce the judicial or arbitral decision in China (even with interim – urgent measures). It would therefore be more opportune, to draft an NDA with an English/Chinese bilingual text and provide for an arbitration in China, applying Chinese law.

NDA – Conclusion

The NDA is a fundamental tool to protect confidential information, and this can be achieved only if it is well drafted, taking into consideration the specific case at hand: it is advisable to refrain from the “do-it-yourself” and seek legal advice from a lawyer who knows how to draw up an NDA bearing in mind all the characteristics of this type of contract  (type of negotiation, information to be shared, location of the parties and countries where the NDA will be executed).

Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

  1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

  1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
  2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
  3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
  4. Costs are reasonable and known in advance.
  5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project

El Código Civil y Comercial de la República Argentina (el “Código”) no contiene artículos específicos para los contratos de distribución. Por ello, al contrato de distribución se lo considera como un “contrato innominado”, el cual contiene, entre otras cosas, elementos de los contratos de compraventa, agencia y mandato. Por lo tanto, si el contrato de distribución no posee una regla específica para un caso particular, las partes deben aplicar por analogía los artículos de estos tres tipos de contratos (compraventa, agencia y mandato) como reglas standard hasta el punto de que sean aplicables en casa caso. Asimismo, el Artículo 1511 del Código establece que las reglas del Capítulo 18 (Contratos de Concesión) aplicarán para los Contratos de Distribución cuando corresponda.

Forma

El Código no requiere de ninguna forma en particular para celebrar este tipo de contratos. Sin embargo, comunmente estos contratos se realizan por escrito.

Cláusulas Importantes

Para todas las partes:

  1. a) Fuerza Mayor: considerando que en la Argentina tiende a existir un ambiente inestable para los negocios debido a razones políticas, las partes deben considerar la posibilidad de incluir en los contratos cláusulas de “cambios de legislación” o “acciones de gobierno” dentro de la definición de fuerza mayor.
  2. b) Seguro de los productos. Es importante que en caso de suceder algún siniestro con los productos, los mismos estén cubiertos para no perder todo el dinero de los mismos.
  3. c) Registración del producto.

Para el proveedor:

  1. a) Pago (si es internacional, sin impuestos, cláusulas para recibir el monto total sin deducciones o retenciones).
  2. b) Moneda (en virtud de la inestabilidad del Peso Argentino, es importante establecer cláusulas de reajuste de precio o establecer el precio en Dólares Estadounidenses).
  3. c) Recall del Producto.
  4. d) Tiempo de entrega.
  5. e) Retrasos.
  6. f) Condiciones del stock.

Para el distribuidor:

  1. a) Retornos.
  2. b) Compensación de clientela.
  3. c) Producto defectuoso.
  4. d) Muestras del producto.

Incoterms

En los contratos de distribución nacionales no es usual utilizar Incoterms. Sin embargo, en los contratos de distribución internacionales, es común utilizar los siguientes Incoterms:

Para el transporte aereo: FCA (Free Carrier); para el transporte por barco: FOB(Free On Board).

Responsabilidad sobre el Producto

Conforme la Ley Nº 24.240 de Defensa del Consumidor, el consumidor tiene un plazo de 3 años para realizar un reclamo contra el distribudor y/o el proveedor, mientras que para otras partes de la cadena de comercialización, los cuales tiene una relación contractual directa con el distribuidor y/o proveedor (ej: minoristas que adquirieron los productos del distribuidor y/o un subcontratista del distribuidor), el plazo es de 10 años. En cualquier caso, los partes deben estar interesados en la posibilidad de establecer que el plazo de 3 años comience a contarse desde la fecha de vencimiento de los productos en lugar de la fecha de terminación del contrato (ej: un producto puede ser guardado y no vendido por un tiempo y por ende el plazo de 3 años retrasarse).

Propiedad Intelectual

El proveedor debe realizar y renovar la registración de las marcas de los productos en Argentina. En función de ello, es importante incluir una cláusula en el contrato que establezca que las marcas son de propiedad del proveedor y que el distribuidor únicamente puede usarlas en la medida que tenga autorización por parte del proveedor mientras se encuentre vigente el contrato. Asimismo, el distribuidor debe proteger las marcas del proveedor.

Resolución

Las Partes pueden acordar libremente como podrá resolverse el contrato. En caso de existir un cláusula de resolución sin causa, la misma debe tener un preaviso razonable para que la otra parte pueda conseguir otro distribuidor o enfrentar la pérdida del cliente, dependiendo quien ejerza la opción.

Ley Aplicable y Jurisdicción

Las partes pueden pactar la ley que consideren mejor para resolver cualqueir asunto del contrato. Asimismo, las partes también podrán elegir libremente que tribunal o arbitraje elegir dentro del país o en el extranjero.

El autor de este post es Tomás García Navarro.

President Erdogan made a presidential decree that mandatorily requires use of Turkish lira for transactions concluded between parties resident in Turkey. The Decree amending the Decree on Protecting the value of Turkish Lira, (The Decree) is published in the Official Gazette and came into force on 13th September 2018.

The Decree orders use of Turkish Lira for purchase and sale of all kinds of goods, commodities, services and real estate. All kinds of lease and rental of vehicles and all kinds of goods and real estate must also be made by using Turkish Liras. The decree also stipulates that no reference to currency exchange tying a contract payment or value to foreign currency can be made and the all contracts between Turkish residents even if foreign owned must be based on Turkish Liras.

Let’s see the changes introduced by the regulation point by point.

No Use of Foreign Currency in domestic Contracts

New currency policy states that all payments related to contracts between local parties i.e. Turkish Residents whether legal persons or real persons must be made in Turkish liras.

Accordingly all real estate transactions must be made in Turkish liras and no reference can be made to foreign currencies.

All Contracts Must be Amended within 30 days

The Decree establishes also that all contracts between Turkish residents made before 13th September 2018 must be amended and the payments must be converted into Turkish liras from any foreign currency within 30 days from the publish date of The Decree (13th September 2018): this shall mean that all contracts based on foreign currencies must be amended within 14th October 2018.

There is no reference to a currency exchange rate when amending contracts into Turkish Liras. The parties are free to agree on any currency rate when amending however this cannot be stipulated in the contract but only for negotiation purposed when drafting the amendment.

The governmental projects which have been signed earlier should be coordinated with the related authority and adaption should be made in line with the new currency regime.

Import and Export of Goods and Services

The new decree does not impact an export or import relation, as long as one of the parties is not Turkish resident. However one must note that The Decree may have an impact on Turkish based subsidiaries of multinational companies trading with foreign currency.

There is no limitation in bringing foreign currency into country.

Sanctions

New foreign currency policy does not address any criminal or administrative sanctions. New regulations should be expected to implement the practice of The Decree. Needless to say, if one of the parties of an existing contract based on foreign currency will be eager to take the matter to the civil courts if no amendment is made within 30 days and easily obtain a court decision for amendment.

Conclusion

This move is considered as one of the steps of measure step to support the ailing local currency.

Slipping Turkish Liras has been an on-going concern for Turkey in last 6 months. The sudden drop of Turkish Liras exchange rate urged the government to find a quick cure to increase the value of Turkish liras or at least to maintain the status.

Those days, some rough policies have been adopted by governments to safeguard the fragile Turkish Lira. The measures taken indeed prevented Turkish economy to accelerate and take off. With the new liberal look after 1983 elections many of these hard measures were lifted and the law on Protection of Turkish Liras was eased. The era before 1980s when there were hard policies applied to protect Turkish Lira was in a different world than today.

The latest measure may or may not address an improvement but it is a fact that many foreign investors or local investors funded by foreign institutions will have to struggle due to the new regulations pushing them to amend their contracts into Turkish Liras from foreign currencies.

Not what you would expect 

When can you terminate, how should you terminate, and how much are you exposed?!

The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.

This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.

However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.

In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.

Nevertheless, often the international corporation decides for various reasons (such as establishing an «in-house» operation» in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.

What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?

Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.

Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.

As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.

The truth is the reasonability of the due notice varies from case to case!

However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to «justify» avoiding a due notice period or adequate compensation.

In this respect, in many cases simple «non-satisfaction» was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.

There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.

Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.

Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.

The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.

In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.

It is often the case – in practice – that an ongoing commercial relationship builds slowly over time through a series of sales agreements, without the parties ever signing an actual distribution agreement to set down their respective rights and responsibilities.

At first blush this might appear to be a good thing: one can sidestep being bound, especially long-term, to the other party. But on closer scrutiny the solution becomes problematic, especially for anyone operating internationally.

One of the key issues that arises when an international contractual arrangement is not in writing, is identifying the court with jurisdiction over any dispute arising therefrom. In the European Union, the issue is resolved by the provisions of Regulation 1215/2012 (“Brussels I recast”). Pursuant to Article 7 of the Regulation, as an alternative to the defendant’s courts, jurisdiction in a contractual dispute may lie with the court in the place of performance of the obligation in question. Next to this general rule are two criteria to identify the “place of performance”, differentiated according to the type of contract at issue. For a contract for goods, it is the place of delivery for the goods; in a contract for services, it is the place where the services are provided.   

Thus, to identify the court with jurisdiction, it is crucial that a contract fall under one of these categories: goods or services.

No doubt this distinction is quite simple in many circumstances. In the case of a distribution agreement, or of a commercial concession agreement, the issue may become thorny.

The European Court of Justice has analysed this issue on a number of occasions, most recently in their judgement of 8 March 2018 (Case no. C-64/17) following the request for a preliminary ruling from a Portuguese Court of Appeal. The parties to the action were a Portuguese distributor, a company called Lusavouga, and a Belgian company called Saey Home & Garden, that produced articles for the home and garden, including a line of products branded “Barbecook”.

Following Saey’s decision to break off the commercial relationship – notice of which was sent in an email dated 17 July 2014 – Lusavouga brought action in Portugal seeking compensation for the unexpected termination of the agreement, and goodwill indemnity. Saey raised a plea of lack of jurisdiction of the Portuguese court, citing their general conditions of sale (mentioned in their invoices) which required that a Court in Belgium be competent for dispute resolution.

The facts thus presented two issues to be resolved in light of the Brussels I recast Regulation: deciding whether a jurisdiction clause in a vendor’s general terms and conditions pursuant to Art. 25 of the Regulation shall apply, and, if not, choosing the court with jurisdiction under Art. 7 of the Regulation.

Shall a jurisdiction clause contained within a vendor’s general terms and conditions apply to a distribution relationship?

The supplier company apparently considered their course of dealing with the Portuguese retailer nothing more than a concatenation of individual sales of goods, governed by their general terms and conditions. Consequently, they argued that any dispute arising from the relationship should be subject to the jurisdiction clause identifying Belgium as the court with jurisdiction under those terms and conditions.

Thus, a determination was needed on whether, under these facts, there was a valid prorogation of jurisdiction under Article 25, paragraph 1 of Regulation 1215/2012.

The Court of Justice has long opined that if the jurisdiction clause is included in the general contract conditions drafted by one of the parties, the contract signed by the other party must contain an express reference to those general conditions in order to ensure the real consent thereto by the parties (judgement of 14 December 1976, Estasis Salotti di Colzani, case no. 24/76; judgement of 16 March 1999, Castelletti, case no. C-159/97; judgement of 7 July 2016, Höszig, case no. C-225/15). Moreover, to be valid, the clause must involve a particular legal relationship (judgement of 20 April 2016, Profit Investment SIM, case no. C-366/13).

In the instant case, the referring court found it self-evident that the legal relationship at bar was a commercial concession agreement entered into for the purpose of distributing Saey products in Spain, a contract that was not evidenced in writing.

From this perspective, it is clear that the general conditions contained in the Saey invoices could have no bearing on the commercial concession agreement: assuming Lusavouga’s consent had been proven, the selection of Belgium as the forum would have applied if anything to the individual sales agreements, but not to those duties arising from the separate distribution agreement.

What, then, would be the court with jurisdiction for the duties arising from the commercial concession agreement?

Absent any jurisdiction clause, the issue would be decided under Art. 7, point 1 of Regulation 1215/2012, under which it becomes imperative to establish whether a contract is for goods or for services.

The “provision of services” has been defined by the Court of Justice as an activity, not mere omissions, undertaken in return for remuneration (judgement of 23 April 2009, Falco, case no. C-533/07).

With the judgements in Corman Collins of 19 December 2013 (case no. C-9/12), and Granarolo of 14 July 2016 (case no. C-196/15), the Court held that in a typical distribution agreement, the dealer renders a service, in that they are involved in increasing the distribution of supplier’s product, and receives in consideration therefor a competitive advantage, access to advertising platforms, know-how, or payment facilities. In light of such elements, the contract relationship should be deemed one for services. If on the other hand the commercial relationship is limited to a concatenation of agreements, each for the purpose of a delivery and pickup of merchandise, then what we have is not a typical distribution agreement, and the contractual relationship shall be construed as one for the sale of goods.

Once the contract has been categorised as one for services, one must then determine “the place where, under the contract, the services are provided”. The Court specifies that such location shall be understood as the member state of the place of the main provision of services, as it follows from the provisions of the contract  or – as in the case at issue – the actual performance of the same. Only where it is impossible to identify such location shall the domicile of the party rendering the service be used.

From the referring court’s description of the contractual relationship, and from the Court of Justice’s understanding of the distributor’s performance of services, it would be logical to find that the principal location for performance of services was Spain, where Lusavouga “was involved in increasing the distribution of products” of Saey.

It is clear that neither the manufacturer nor the distributor would ever have intended such a result, and they might have avoided it being chosen for them by reducing their agreement in writing, including a jurisdiction clause therein.

By the same token, viewed from the outside, the Portuguese judges’ apparent conviction that the situation was one of an actual dealership contract would leave ample room for debate. After all, a number of elements would lead to the opposite conclusion. However, even in terms of that aspect, the absence of a written contract left room for interpretation that might lead to unforeseen – and perhaps rather risky – consequences.

In conclusion, the wisdom of setting down the terms and conditions of a sales distribution agreement in writing appears clear. This is not only because one can avoid those ambiguities we have described above, but also because it specifies other important clauses stipulated by the parties that should not be left to chance: exclusivity of area, if any, or with respect to specific sales channels, the contract period and termination notice, any duties to promote the product, control over end-user personal data, and the possibility of, and methods for, any online sales of products.

Benjamin Leventhal

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    Sales Distribution Agreement – Goods or Services?

    28 de agosto de 2018

    • Italia
    • Contratos de distribución
    • Litigios

    On 1 January, the new Packaging Act (“Verpackungsgesetz”) will replace the existing Packaging Ordinance (“Verpackungsverordnung”). Non-compliance with the new rules may have very unpleasant consequences.

    For those who sell packaged goods to end consumers in Germany it is high noon: they have to adapt to the new packaging law, which comes into force on January 1, 2019.

    The main objective of the new law is that in the future all concerned parties will have to take responsibility and bear the costs of disposing their packaging. The legislator also wants to achieve the increase of the recycling rate of paper, plastic, metal or glass packaging, and to use as many readily recyclable materials as possible. Therefore, the fee that producers or distributors must pay for disposal will in future not only depend on the quantity and material type, but also more on the recyclability of the packaging.

    Who is affected by this law?

    Manufacturers, online dealers and distributors of packaged goods of all kinds.

    Affected are all so-called initial distributors of packaging, which typically end up at the private end consumer. These can be manufacturers, online dealers and distributors of packaged goods of all kinds, whether food, electrical appliances or furniture.

    All of them, if they place packaging on the market for the first time, must register with one of the dual systems already today and, depending on the quantity and material of the packaging waste, pay a participation fee to the German take-back system.

    It is new from next year on that they additionally have to register with the Central Agency Packaging Register and specify the amount of waste.

    This information will be publicly available. By doing so, the legislator wants to create transparency and ensure that all those who place «packaging» on the market fulfill their obligations.

    Also new is that the fees, which so far have been simply calculated according to quantity and type of material, should in future also depend on how well a material can be recycled.

    For example: Cardboard boxes, which usually consist of two-thirds of waste paper, are easily recyclable, as are aluminium cans, which can be reused to 100 percent. By contrast, the notorious coffee-to-go cups are not recyclable because they consist of a quasi-inseparable composite material.

    How exactly the gradations will look is not yet certain, as the dual systems still work on the implementation.

    Further innovations for beverage manufacturers and distributors

    The law contains several other changes that are particularly important for beverage manufacturers and distributors. The compulsory deposit for disposable containers will be extended to include a few types of beverages that were previously exempted, such as carbonated fruit and vegetable nectars. A new duty has been introduced for retailers, who must point out «with clearly visible signs» on disposable and reusable beverage packaging.As from 1st of January 2019 companies must also file the so-called Declaration of Compliance (“Vollstaendigkeitserklaerung”) with the Central Agency Packaging Register and not anymore with the respective local Chamber of Industry and Commerce.

    What is the Declaration of Compliance?

    A Declaration of Compliance is a verification concerning the volumes of sales packaging placed into the market by a manufacturer / distributor within one calendar year.

    The filing of the Declaration of Compliance, however, only affects larger manufacturers, since the de minimis limits are set quite high in this respect. For paper, cardboard or carton it is about 80 tons per year.

    Pre-registration is already possible as from September 2018. It is important to note, however, that every company involved in the system must perform the registration and data reporting «personally», meaning that this process may not be transferred to third parties.

    The respective database run by the Central Agency Packaging Register is called LUCID. Manufacturers, online dealers or initial distributors who preregister with LUCID will receive a provisional registration number, which will be sent to the Dual system with which they can sign a contract. There are currently nine companies offering this. Manufacturers who preregister in 2018 will automatically receive a registration confirmation from the Central Agency Packaging Register at the beginning of 2019. The registration including the indication of quantities is free and can be done online.

    The Central Agency Packaging Register is also responsible to monitor compliance with the regulations. However, at the end of the day, everyone can check the respective compliance as LUCID is a transparent register and open to everyone to search the register for specific manufacturers and brands.

    The law explains why this can have quite unpleasant consequences:

    In case the registration is omitted, there is automatically a ban on distribution of the packaging and there is a threat of fines to be imposed which may range up to 100.000 €! Due to the publicity of the register, agents not complying with the law may have to expect that their goods will be discontinued in the German trade.

    Still unclear issues

    The definition of packaging covered by this law is not quite clear. Transport packaging such as that used by a manufacturer for delivery to the dealer and disposed of there, for example, is not affected by the obligation to participate at the system and the new registration obligation. This packaging does not end up at the private end consumer. But what about wine boxes, for example? They are often only transport packaging, but some customers may take a whole box of their favorite wine with them. In addition, hotels and restaurants, such as those supplied by a retailer, are considered by law to be private end consumers.

    The author of this post is Olga Dimopoulou

    In a recent decision on the 24th of October 2018 (n°18-D-23), the French Competition Authority (Autorité de la Concurrence, aka AdlC) fined the Stihl company (leader in mechanized culture products) for his practices in his selective distribution network. Stihl managed to restrict the sale of its products by its authorized distributors on their own website and to prohibit them from marketing them on third-party platforms.

    The ruling is considered by the AdlC as having «vocation to clarify the framework applicable in France for the different sectors and products, beyond the sole sector of the mechanized culture».

    In this case the network implemented by the supplier was a selective distribution network. Therefore, AdlC’s position can only concern the implementation of a selective distribution network and is not applicable to an exclusive distribution network (see our Update Distribution/Competition, April 2018).

    1. The lawfulness of the selective distribution network

    The Authority follows the traditional analysis of validity of a selective distribution network. First, it highlights that selection of resellers was based on objective criteria such as qualitative nature, applied in a uniform manner and without any discrimination.

    Then, the Authority had to determine whether the qualitative criterion conditioning the lawfulness of the selective distribution system was fulfilled or not. The Authority has decided that the fact that products in question are of a delicate assembly and that some of them even present risks for safety of users, justifies setting up a network of selective distribution.

    1. The lawfulness of the ban on selling technical products on third-party platforms

    The decision of the AdlC was especially expected on this point because it had to take into account rulings rendered by the CJEU and then by the Paris Court of Appeal in the Coty cases ((CJUE 6/12/17, affaire 230/16; Cour d’appel de Paris, pôle 5, ch 4, 28 février 2018, n° 16/02263). The question was: the right of suppliers to prohibit their authorized distributors from distributing their products on third-party platforms is limited to luxury goods only (the Coty hypothesis) or could be extended to include others products? The hypothesis of this extension had already been addressed by other courts in Europe and also by the Advocate General before the CJEU (see our Update Distribution/Competition, December 2017) and then by the European Commission.

    In a nutshell the Authority extends the Coty case law to technical products whether they are dangerous or not.

    First of all, the Authority notes that «prohibition to sell on platforms contributes to preserving the safety of consumers and to guaranteeing the brand image and the quality of the products concerned».

    Then, the Authority checked whether this restriction did not go beyond what is necessary in regards to characteristics of products in question. It notes that in the case of third-party platforms, this restriction allows supplier to control that its distributors comply with requirements of distribution network.

    Finally, the AdlC checked whether this prohibition was not disproportionate, and in this case, noted that there is no disproportion in so far as distribution on third-party marketplaces is not a main marketing channel for mechanized culture products.

    This result (validation of the ban on the sale of products on third-party platforms) may allow many economic operators to believe legitimately that the scope of the Coty case law can be broad.

    1. Prohibition of restrictions on resale of products on distributors’ websites

    However the AdlC has refused to approve the clause restricting resale of products by distributors on their own websites.

    In this case, if customers of the distributors could place an order online, they had to, for products with a certain dangerous nature (such as chainsaw, pruner, brushcutter, etc.) either come to withdraw the product at a (physical) sell point owned by distributor or to be delivered by the distributor. Distributor had indeed underwritten a complete obligation to «put in hand» the machine, including the oral communication of usage instructions and a demonstration.

    The AdlC decided that this obligation to put in hand was actually to cancel advantages attached to Internet selling and thus to prohibit purely and simply Internet selling. According to the Authority, this restriction went beyond what is necessary to preserve consumer’s health.

    The AdlC had to determine whether this restriction was a restriction by object or effect. According to the Authority, the restriction at stake reduced the ability of distributors to sell products outside their usual customers catchment area, and as such should be characterized as a competitive restriction by object.

    On possible exemptions issues, the Authority first rejects the possibility of category exemption within the meaning of the EU Block Exemption Regulation No 330/2010, the anti-competitive practice being comparable to a restriction characterized by passive sales within the meaning of Article 4, para. (c). Possibility of an individual exemption was also rejected by the Authority after examining any efficiency gains related to this «put in hand» obligation.

    The Authority could have taken advantage of this particular case, to refine the Pierre Fabre / Bang & Olufsen case law and validate and update sales restrictions on the Internet when the proper nature or quality of products justifies such a restriction.

    In summary, the marketing of products involving high technicality or which tend to be dangerous by using it:

    • justifies the implementation of a selective distribution network;
    • may be prohibited on third party platforms (if the selective distribution network is considered lawful);
    • could not be restricted on the websites of authorized distributors of a lawful selective network, for lack of «efficiency gain» in favor of consumers, according to a very (too?) strict position of the AdlC.

    On this last point, it will probably be necessary to wait for a clearer solution given by the Court of Appeal of Paris (in front of which a recourse is now pending) or the Court of Cassation.

    Very frequently, different business settings present the opportunity to sign a Non-Disclosure Agreement (“NDA”) and a Memorandum of Understanding (“MoU”) or Letter of Intent (“LoI”), so much so that these three acronyms – NDA, MoU and Lol – are now commonly used, particularly throughout international negotiations.

    However, often times, these contracts are used in an improper way and with different purposes than those for which they were established in international commercial praxis, with the result that they are either not useful because they do not effectively protect the parties’ interests, or are counterproductive.

    We shall start by taking a look at the characteristics of the Non-Disclosure Agreement – NDA – and how it should be used.

    What is a NDA?

    The NDA is an agreement whose function is to protect the confidential information that the parties (generally identified, respectively as the “Disclosing Party” and the “Receiving Party”) intend sharing, in different possible scenarios: forwarding of information for a preliminary due diligence relating to an investment, the evaluation of commercial data for a distribution contract, technical specifications related to a certain product that is subject of transfer of technology etc.

    The first step of the negotiations, in fact, often requires that different types of information whether technical, financial or commercial, are made available by one or both parties, and the need for this information to remain confidential (hereinafter the “Confidential Information”) during and after the conclusion of the negotiations.

    NDA – Who are the parties?

    Right from the recitals of the agreement, it is very important to correctly identify the parties obliged to safeguard the information and maintain its confidentiality, especially when group companies are involved, and where the interlocutors may be many and located in different countries. In such cases, it is advisable to oblige the Receiving Party to guarantee confidentiality by all the companies by means of a specific clause. It is also important that the agreement accurately indicates the people belonging to the Receiving Party’s organization (such as: employees, technical consultants, experts, collaborators, etc.) who have a right to access the information, if possible by signing a confidentiality agreement by all the people involved.

    NDA – What is Confidential Information?

    The use of recycled NDA templates, found on forms or proposed by the counterparty is certainly not a recommended practice, but unfortunately one that is very widespread. These templates are very often generic and include broad definitions of Confidential Information as well as very detailed lists which actually include all contents of a business activity, often including areas that are not applicable to the object of the activity being negotiated, or information that is actually not reserved.

    The problem regarding these templates is that it is difficult, ex post, to verify whether certain information  would have been included in the Confidential Information, for example either because it would be difficult to determine whether the Receiving Party would have already been in possession before the signing of the NDA, or because the information would not have been expressly mentioned in a clause that contains a very detailed list, but which does not include the individual piece of information that is of interest, or lastly because after the signing of the NDA, the Confidential Information would have been shared using non-secure and non-traceable procedures (for example as an email attachment).

    The best way to proceed is that of identifying in a very specific way only the information that needs to be shared, listing the documents in an attachment to the NDA, thereafter making them available in a format that leaves no doubt regarding their confidentiality, for example by marking them with a watermark or stamp “Confidential under NDA”. Furthermore, a good praxis is to provide access to the Confidential Information only through a secure way (such as a reserved cloud , accessible only through an individual user name and password that is given to authorized people).

    NDA – Prohibition from using the Confidential Information

    Often times through the standard NDA templates, the Receiving Party is only obliged to maintain the Confidential Information reserved, without being prohibited from its use which – especially in cases of competitor companies – may be more dangerous than divulging the information: imagine technology development or patents based on data acquired, or the use of lists of clients or other commercial information. To highlight and strengthen this obligation it would be more correct to name the document Non-Disclosure and Non-Use Agreement (“NDNUA”).

    NDA – Duration

    The function of the NDA is to protect the Confidential Information for the entire time during which it needs to be shared between the Parties. It is therefore important to clearly indicate the last moment the information will be used and – in the event that the Receiving Party is in possession of a copy of the Confidential Information – ensure that the Receiving Party returns or destroys the documents and shall maintain the Information reserved and shall refrain from using the Information for a few months (better years) following the termination of the NDA.

    Breach of the NDA

    Attempting to quantify the damages resulting from a breach of the confidentiality clause is generally very complex: it may therefore be useful to provide for a penalty clause, that establishes a certain amount for the damage deriving from a contractual non-fulfilment. To this effect it is important to consider that the estimate of the penalty shall be reasonable in relation to the damage assumed to derive from the breach of confidentiality, and that different types of penalties can be established according to different cases of non-fulfilment (for example, registration or counterfeit of a patent through the use of shared technical information, or contact with certain business partners).

    There is also another advantage inserting a penalty clause in the NDA: if during the negotiations the Receiving Party objects to the clause or requests it to be reduced, it may indicate a mental reservation of default, and in any case is symptomatic of a fear of having to pay this amount, which would have no reason to exist if the party intended abiding strictly to the contractual obligations.

    NDA – Litigation, jurisdiction and applicable law

    Even in this case there is an unfortunate practice, which is that of relegating this type of clause to the end of the agreement (concerning the so-called midnight clauses, to this effect you may refer to this post on  legalmondo) and thus not dedicate enough attention to its contents, which may lead to adopting clauses that are completely wrong (or worse still, null).

    In reality this is a very important provision, which leads to ensuring contractual enforcement and/or obtaining a judicial decision that may be executed in a rapid and effective way. There is no solution that applies to all cases and the individual  negotiation need to be considered: for example in an NDA with a Chinese counterpart it may be counterproductive to choose the Italian jurisdiction and apply Italian law, given that in the event of non-fulfilment it is usually necessary to take legal action and enforce the judicial or arbitral decision in China (even with interim – urgent measures). It would therefore be more opportune, to draft an NDA with an English/Chinese bilingual text and provide for an arbitration in China, applying Chinese law.

    NDA – Conclusion

    The NDA is a fundamental tool to protect confidential information, and this can be achieved only if it is well drafted, taking into consideration the specific case at hand: it is advisable to refrain from the “do-it-yourself” and seek legal advice from a lawyer who knows how to draw up an NDA bearing in mind all the characteristics of this type of contract  (type of negotiation, information to be shared, location of the parties and countries where the NDA will be executed).

    Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

    It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

    And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

    The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

    The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

    1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

    Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

    1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
    2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
    3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
    4. Costs are reasonable and known in advance.
    5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

    To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project

    El Código Civil y Comercial de la República Argentina (el “Código”) no contiene artículos específicos para los contratos de distribución. Por ello, al contrato de distribución se lo considera como un “contrato innominado”, el cual contiene, entre otras cosas, elementos de los contratos de compraventa, agencia y mandato. Por lo tanto, si el contrato de distribución no posee una regla específica para un caso particular, las partes deben aplicar por analogía los artículos de estos tres tipos de contratos (compraventa, agencia y mandato) como reglas standard hasta el punto de que sean aplicables en casa caso. Asimismo, el Artículo 1511 del Código establece que las reglas del Capítulo 18 (Contratos de Concesión) aplicarán para los Contratos de Distribución cuando corresponda.

    Forma

    El Código no requiere de ninguna forma en particular para celebrar este tipo de contratos. Sin embargo, comunmente estos contratos se realizan por escrito.

    Cláusulas Importantes

    Para todas las partes:

    1. a) Fuerza Mayor: considerando que en la Argentina tiende a existir un ambiente inestable para los negocios debido a razones políticas, las partes deben considerar la posibilidad de incluir en los contratos cláusulas de “cambios de legislación” o “acciones de gobierno” dentro de la definición de fuerza mayor.
    2. b) Seguro de los productos. Es importante que en caso de suceder algún siniestro con los productos, los mismos estén cubiertos para no perder todo el dinero de los mismos.
    3. c) Registración del producto.

    Para el proveedor:

    1. a) Pago (si es internacional, sin impuestos, cláusulas para recibir el monto total sin deducciones o retenciones).
    2. b) Moneda (en virtud de la inestabilidad del Peso Argentino, es importante establecer cláusulas de reajuste de precio o establecer el precio en Dólares Estadounidenses).
    3. c) Recall del Producto.
    4. d) Tiempo de entrega.
    5. e) Retrasos.
    6. f) Condiciones del stock.

    Para el distribuidor:

    1. a) Retornos.
    2. b) Compensación de clientela.
    3. c) Producto defectuoso.
    4. d) Muestras del producto.

    Incoterms

    En los contratos de distribución nacionales no es usual utilizar Incoterms. Sin embargo, en los contratos de distribución internacionales, es común utilizar los siguientes Incoterms:

    Para el transporte aereo: FCA (Free Carrier); para el transporte por barco: FOB(Free On Board).

    Responsabilidad sobre el Producto

    Conforme la Ley Nº 24.240 de Defensa del Consumidor, el consumidor tiene un plazo de 3 años para realizar un reclamo contra el distribudor y/o el proveedor, mientras que para otras partes de la cadena de comercialización, los cuales tiene una relación contractual directa con el distribuidor y/o proveedor (ej: minoristas que adquirieron los productos del distribuidor y/o un subcontratista del distribuidor), el plazo es de 10 años. En cualquier caso, los partes deben estar interesados en la posibilidad de establecer que el plazo de 3 años comience a contarse desde la fecha de vencimiento de los productos en lugar de la fecha de terminación del contrato (ej: un producto puede ser guardado y no vendido por un tiempo y por ende el plazo de 3 años retrasarse).

    Propiedad Intelectual

    El proveedor debe realizar y renovar la registración de las marcas de los productos en Argentina. En función de ello, es importante incluir una cláusula en el contrato que establezca que las marcas son de propiedad del proveedor y que el distribuidor únicamente puede usarlas en la medida que tenga autorización por parte del proveedor mientras se encuentre vigente el contrato. Asimismo, el distribuidor debe proteger las marcas del proveedor.

    Resolución

    Las Partes pueden acordar libremente como podrá resolverse el contrato. En caso de existir un cláusula de resolución sin causa, la misma debe tener un preaviso razonable para que la otra parte pueda conseguir otro distribuidor o enfrentar la pérdida del cliente, dependiendo quien ejerza la opción.

    Ley Aplicable y Jurisdicción

    Las partes pueden pactar la ley que consideren mejor para resolver cualqueir asunto del contrato. Asimismo, las partes también podrán elegir libremente que tribunal o arbitraje elegir dentro del país o en el extranjero.

    El autor de este post es Tomás García Navarro.

    President Erdogan made a presidential decree that mandatorily requires use of Turkish lira for transactions concluded between parties resident in Turkey. The Decree amending the Decree on Protecting the value of Turkish Lira, (The Decree) is published in the Official Gazette and came into force on 13th September 2018.

    The Decree orders use of Turkish Lira for purchase and sale of all kinds of goods, commodities, services and real estate. All kinds of lease and rental of vehicles and all kinds of goods and real estate must also be made by using Turkish Liras. The decree also stipulates that no reference to currency exchange tying a contract payment or value to foreign currency can be made and the all contracts between Turkish residents even if foreign owned must be based on Turkish Liras.

    Let’s see the changes introduced by the regulation point by point.

    No Use of Foreign Currency in domestic Contracts

    New currency policy states that all payments related to contracts between local parties i.e. Turkish Residents whether legal persons or real persons must be made in Turkish liras.

    Accordingly all real estate transactions must be made in Turkish liras and no reference can be made to foreign currencies.

    All Contracts Must be Amended within 30 days

    The Decree establishes also that all contracts between Turkish residents made before 13th September 2018 must be amended and the payments must be converted into Turkish liras from any foreign currency within 30 days from the publish date of The Decree (13th September 2018): this shall mean that all contracts based on foreign currencies must be amended within 14th October 2018.

    There is no reference to a currency exchange rate when amending contracts into Turkish Liras. The parties are free to agree on any currency rate when amending however this cannot be stipulated in the contract but only for negotiation purposed when drafting the amendment.

    The governmental projects which have been signed earlier should be coordinated with the related authority and adaption should be made in line with the new currency regime.

    Import and Export of Goods and Services

    The new decree does not impact an export or import relation, as long as one of the parties is not Turkish resident. However one must note that The Decree may have an impact on Turkish based subsidiaries of multinational companies trading with foreign currency.

    There is no limitation in bringing foreign currency into country.

    Sanctions

    New foreign currency policy does not address any criminal or administrative sanctions. New regulations should be expected to implement the practice of The Decree. Needless to say, if one of the parties of an existing contract based on foreign currency will be eager to take the matter to the civil courts if no amendment is made within 30 days and easily obtain a court decision for amendment.

    Conclusion

    This move is considered as one of the steps of measure step to support the ailing local currency.

    Slipping Turkish Liras has been an on-going concern for Turkey in last 6 months. The sudden drop of Turkish Liras exchange rate urged the government to find a quick cure to increase the value of Turkish liras or at least to maintain the status.

    Those days, some rough policies have been adopted by governments to safeguard the fragile Turkish Lira. The measures taken indeed prevented Turkish economy to accelerate and take off. With the new liberal look after 1983 elections many of these hard measures were lifted and the law on Protection of Turkish Liras was eased. The era before 1980s when there were hard policies applied to protect Turkish Lira was in a different world than today.

    The latest measure may or may not address an improvement but it is a fact that many foreign investors or local investors funded by foreign institutions will have to struggle due to the new regulations pushing them to amend their contracts into Turkish Liras from foreign currencies.

    Not what you would expect 

    When can you terminate, how should you terminate, and how much are you exposed?!

    The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.

    This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.

    However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.

    In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.

    Nevertheless, often the international corporation decides for various reasons (such as establishing an «in-house» operation» in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.

    What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?

    Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.

    Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.

    As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.

    The truth is the reasonability of the due notice varies from case to case!

    However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to «justify» avoiding a due notice period or adequate compensation.

    In this respect, in many cases simple «non-satisfaction» was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.

    There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.

    Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.

    Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.

    The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.

    In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.

    It is often the case – in practice – that an ongoing commercial relationship builds slowly over time through a series of sales agreements, without the parties ever signing an actual distribution agreement to set down their respective rights and responsibilities.

    At first blush this might appear to be a good thing: one can sidestep being bound, especially long-term, to the other party. But on closer scrutiny the solution becomes problematic, especially for anyone operating internationally.

    One of the key issues that arises when an international contractual arrangement is not in writing, is identifying the court with jurisdiction over any dispute arising therefrom. In the European Union, the issue is resolved by the provisions of Regulation 1215/2012 (“Brussels I recast”). Pursuant to Article 7 of the Regulation, as an alternative to the defendant’s courts, jurisdiction in a contractual dispute may lie with the court in the place of performance of the obligation in question. Next to this general rule are two criteria to identify the “place of performance”, differentiated according to the type of contract at issue. For a contract for goods, it is the place of delivery for the goods; in a contract for services, it is the place where the services are provided.   

    Thus, to identify the court with jurisdiction, it is crucial that a contract fall under one of these categories: goods or services.

    No doubt this distinction is quite simple in many circumstances. In the case of a distribution agreement, or of a commercial concession agreement, the issue may become thorny.

    The European Court of Justice has analysed this issue on a number of occasions, most recently in their judgement of 8 March 2018 (Case no. C-64/17) following the request for a preliminary ruling from a Portuguese Court of Appeal. The parties to the action were a Portuguese distributor, a company called Lusavouga, and a Belgian company called Saey Home & Garden, that produced articles for the home and garden, including a line of products branded “Barbecook”.

    Following Saey’s decision to break off the commercial relationship – notice of which was sent in an email dated 17 July 2014 – Lusavouga brought action in Portugal seeking compensation for the unexpected termination of the agreement, and goodwill indemnity. Saey raised a plea of lack of jurisdiction of the Portuguese court, citing their general conditions of sale (mentioned in their invoices) which required that a Court in Belgium be competent for dispute resolution.

    The facts thus presented two issues to be resolved in light of the Brussels I recast Regulation: deciding whether a jurisdiction clause in a vendor’s general terms and conditions pursuant to Art. 25 of the Regulation shall apply, and, if not, choosing the court with jurisdiction under Art. 7 of the Regulation.

    Shall a jurisdiction clause contained within a vendor’s general terms and conditions apply to a distribution relationship?

    The supplier company apparently considered their course of dealing with the Portuguese retailer nothing more than a concatenation of individual sales of goods, governed by their general terms and conditions. Consequently, they argued that any dispute arising from the relationship should be subject to the jurisdiction clause identifying Belgium as the court with jurisdiction under those terms and conditions.

    Thus, a determination was needed on whether, under these facts, there was a valid prorogation of jurisdiction under Article 25, paragraph 1 of Regulation 1215/2012.

    The Court of Justice has long opined that if the jurisdiction clause is included in the general contract conditions drafted by one of the parties, the contract signed by the other party must contain an express reference to those general conditions in order to ensure the real consent thereto by the parties (judgement of 14 December 1976, Estasis Salotti di Colzani, case no. 24/76; judgement of 16 March 1999, Castelletti, case no. C-159/97; judgement of 7 July 2016, Höszig, case no. C-225/15). Moreover, to be valid, the clause must involve a particular legal relationship (judgement of 20 April 2016, Profit Investment SIM, case no. C-366/13).

    In the instant case, the referring court found it self-evident that the legal relationship at bar was a commercial concession agreement entered into for the purpose of distributing Saey products in Spain, a contract that was not evidenced in writing.

    From this perspective, it is clear that the general conditions contained in the Saey invoices could have no bearing on the commercial concession agreement: assuming Lusavouga’s consent had been proven, the selection of Belgium as the forum would have applied if anything to the individual sales agreements, but not to those duties arising from the separate distribution agreement.

    What, then, would be the court with jurisdiction for the duties arising from the commercial concession agreement?

    Absent any jurisdiction clause, the issue would be decided under Art. 7, point 1 of Regulation 1215/2012, under which it becomes imperative to establish whether a contract is for goods or for services.

    The “provision of services” has been defined by the Court of Justice as an activity, not mere omissions, undertaken in return for remuneration (judgement of 23 April 2009, Falco, case no. C-533/07).

    With the judgements in Corman Collins of 19 December 2013 (case no. C-9/12), and Granarolo of 14 July 2016 (case no. C-196/15), the Court held that in a typical distribution agreement, the dealer renders a service, in that they are involved in increasing the distribution of supplier’s product, and receives in consideration therefor a competitive advantage, access to advertising platforms, know-how, or payment facilities. In light of such elements, the contract relationship should be deemed one for services. If on the other hand the commercial relationship is limited to a concatenation of agreements, each for the purpose of a delivery and pickup of merchandise, then what we have is not a typical distribution agreement, and the contractual relationship shall be construed as one for the sale of goods.

    Once the contract has been categorised as one for services, one must then determine “the place where, under the contract, the services are provided”. The Court specifies that such location shall be understood as the member state of the place of the main provision of services, as it follows from the provisions of the contract  or – as in the case at issue – the actual performance of the same. Only where it is impossible to identify such location shall the domicile of the party rendering the service be used.

    From the referring court’s description of the contractual relationship, and from the Court of Justice’s understanding of the distributor’s performance of services, it would be logical to find that the principal location for performance of services was Spain, where Lusavouga “was involved in increasing the distribution of products” of Saey.

    It is clear that neither the manufacturer nor the distributor would ever have intended such a result, and they might have avoided it being chosen for them by reducing their agreement in writing, including a jurisdiction clause therein.

    By the same token, viewed from the outside, the Portuguese judges’ apparent conviction that the situation was one of an actual dealership contract would leave ample room for debate. After all, a number of elements would lead to the opposite conclusion. However, even in terms of that aspect, the absence of a written contract left room for interpretation that might lead to unforeseen – and perhaps rather risky – consequences.

    In conclusion, the wisdom of setting down the terms and conditions of a sales distribution agreement in writing appears clear. This is not only because one can avoid those ambiguities we have described above, but also because it specifies other important clauses stipulated by the parties that should not be left to chance: exclusivity of area, if any, or with respect to specific sales channels, the contract period and termination notice, any duties to promote the product, control over end-user personal data, and the possibility of, and methods for, any online sales of products.

    Irene Grassi

    Áreas de práctica

    • Derecho Procesal
    • Contratos de distribución
    • Derecho Internacional Privado
    Contáctanos Irene

    Contacta con Irene





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      Resale Price Maintenance – Exception for short-term promotions?

      12 de agosto de 2018

      • Alemania
      • Contratos de distribución

      On 1 January, the new Packaging Act (“Verpackungsgesetz”) will replace the existing Packaging Ordinance (“Verpackungsverordnung”). Non-compliance with the new rules may have very unpleasant consequences.

      For those who sell packaged goods to end consumers in Germany it is high noon: they have to adapt to the new packaging law, which comes into force on January 1, 2019.

      The main objective of the new law is that in the future all concerned parties will have to take responsibility and bear the costs of disposing their packaging. The legislator also wants to achieve the increase of the recycling rate of paper, plastic, metal or glass packaging, and to use as many readily recyclable materials as possible. Therefore, the fee that producers or distributors must pay for disposal will in future not only depend on the quantity and material type, but also more on the recyclability of the packaging.

      Who is affected by this law?

      Manufacturers, online dealers and distributors of packaged goods of all kinds.

      Affected are all so-called initial distributors of packaging, which typically end up at the private end consumer. These can be manufacturers, online dealers and distributors of packaged goods of all kinds, whether food, electrical appliances or furniture.

      All of them, if they place packaging on the market for the first time, must register with one of the dual systems already today and, depending on the quantity and material of the packaging waste, pay a participation fee to the German take-back system.

      It is new from next year on that they additionally have to register with the Central Agency Packaging Register and specify the amount of waste.

      This information will be publicly available. By doing so, the legislator wants to create transparency and ensure that all those who place «packaging» on the market fulfill their obligations.

      Also new is that the fees, which so far have been simply calculated according to quantity and type of material, should in future also depend on how well a material can be recycled.

      For example: Cardboard boxes, which usually consist of two-thirds of waste paper, are easily recyclable, as are aluminium cans, which can be reused to 100 percent. By contrast, the notorious coffee-to-go cups are not recyclable because they consist of a quasi-inseparable composite material.

      How exactly the gradations will look is not yet certain, as the dual systems still work on the implementation.

      Further innovations for beverage manufacturers and distributors

      The law contains several other changes that are particularly important for beverage manufacturers and distributors. The compulsory deposit for disposable containers will be extended to include a few types of beverages that were previously exempted, such as carbonated fruit and vegetable nectars. A new duty has been introduced for retailers, who must point out «with clearly visible signs» on disposable and reusable beverage packaging.As from 1st of January 2019 companies must also file the so-called Declaration of Compliance (“Vollstaendigkeitserklaerung”) with the Central Agency Packaging Register and not anymore with the respective local Chamber of Industry and Commerce.

      What is the Declaration of Compliance?

      A Declaration of Compliance is a verification concerning the volumes of sales packaging placed into the market by a manufacturer / distributor within one calendar year.

      The filing of the Declaration of Compliance, however, only affects larger manufacturers, since the de minimis limits are set quite high in this respect. For paper, cardboard or carton it is about 80 tons per year.

      Pre-registration is already possible as from September 2018. It is important to note, however, that every company involved in the system must perform the registration and data reporting «personally», meaning that this process may not be transferred to third parties.

      The respective database run by the Central Agency Packaging Register is called LUCID. Manufacturers, online dealers or initial distributors who preregister with LUCID will receive a provisional registration number, which will be sent to the Dual system with which they can sign a contract. There are currently nine companies offering this. Manufacturers who preregister in 2018 will automatically receive a registration confirmation from the Central Agency Packaging Register at the beginning of 2019. The registration including the indication of quantities is free and can be done online.

      The Central Agency Packaging Register is also responsible to monitor compliance with the regulations. However, at the end of the day, everyone can check the respective compliance as LUCID is a transparent register and open to everyone to search the register for specific manufacturers and brands.

      The law explains why this can have quite unpleasant consequences:

      In case the registration is omitted, there is automatically a ban on distribution of the packaging and there is a threat of fines to be imposed which may range up to 100.000 €! Due to the publicity of the register, agents not complying with the law may have to expect that their goods will be discontinued in the German trade.

      Still unclear issues

      The definition of packaging covered by this law is not quite clear. Transport packaging such as that used by a manufacturer for delivery to the dealer and disposed of there, for example, is not affected by the obligation to participate at the system and the new registration obligation. This packaging does not end up at the private end consumer. But what about wine boxes, for example? They are often only transport packaging, but some customers may take a whole box of their favorite wine with them. In addition, hotels and restaurants, such as those supplied by a retailer, are considered by law to be private end consumers.

      The author of this post is Olga Dimopoulou

      In a recent decision on the 24th of October 2018 (n°18-D-23), the French Competition Authority (Autorité de la Concurrence, aka AdlC) fined the Stihl company (leader in mechanized culture products) for his practices in his selective distribution network. Stihl managed to restrict the sale of its products by its authorized distributors on their own website and to prohibit them from marketing them on third-party platforms.

      The ruling is considered by the AdlC as having «vocation to clarify the framework applicable in France for the different sectors and products, beyond the sole sector of the mechanized culture».

      In this case the network implemented by the supplier was a selective distribution network. Therefore, AdlC’s position can only concern the implementation of a selective distribution network and is not applicable to an exclusive distribution network (see our Update Distribution/Competition, April 2018).

      1. The lawfulness of the selective distribution network

      The Authority follows the traditional analysis of validity of a selective distribution network. First, it highlights that selection of resellers was based on objective criteria such as qualitative nature, applied in a uniform manner and without any discrimination.

      Then, the Authority had to determine whether the qualitative criterion conditioning the lawfulness of the selective distribution system was fulfilled or not. The Authority has decided that the fact that products in question are of a delicate assembly and that some of them even present risks for safety of users, justifies setting up a network of selective distribution.

      1. The lawfulness of the ban on selling technical products on third-party platforms

      The decision of the AdlC was especially expected on this point because it had to take into account rulings rendered by the CJEU and then by the Paris Court of Appeal in the Coty cases ((CJUE 6/12/17, affaire 230/16; Cour d’appel de Paris, pôle 5, ch 4, 28 février 2018, n° 16/02263). The question was: the right of suppliers to prohibit their authorized distributors from distributing their products on third-party platforms is limited to luxury goods only (the Coty hypothesis) or could be extended to include others products? The hypothesis of this extension had already been addressed by other courts in Europe and also by the Advocate General before the CJEU (see our Update Distribution/Competition, December 2017) and then by the European Commission.

      In a nutshell the Authority extends the Coty case law to technical products whether they are dangerous or not.

      First of all, the Authority notes that «prohibition to sell on platforms contributes to preserving the safety of consumers and to guaranteeing the brand image and the quality of the products concerned».

      Then, the Authority checked whether this restriction did not go beyond what is necessary in regards to characteristics of products in question. It notes that in the case of third-party platforms, this restriction allows supplier to control that its distributors comply with requirements of distribution network.

      Finally, the AdlC checked whether this prohibition was not disproportionate, and in this case, noted that there is no disproportion in so far as distribution on third-party marketplaces is not a main marketing channel for mechanized culture products.

      This result (validation of the ban on the sale of products on third-party platforms) may allow many economic operators to believe legitimately that the scope of the Coty case law can be broad.

      1. Prohibition of restrictions on resale of products on distributors’ websites

      However the AdlC has refused to approve the clause restricting resale of products by distributors on their own websites.

      In this case, if customers of the distributors could place an order online, they had to, for products with a certain dangerous nature (such as chainsaw, pruner, brushcutter, etc.) either come to withdraw the product at a (physical) sell point owned by distributor or to be delivered by the distributor. Distributor had indeed underwritten a complete obligation to «put in hand» the machine, including the oral communication of usage instructions and a demonstration.

      The AdlC decided that this obligation to put in hand was actually to cancel advantages attached to Internet selling and thus to prohibit purely and simply Internet selling. According to the Authority, this restriction went beyond what is necessary to preserve consumer’s health.

      The AdlC had to determine whether this restriction was a restriction by object or effect. According to the Authority, the restriction at stake reduced the ability of distributors to sell products outside their usual customers catchment area, and as such should be characterized as a competitive restriction by object.

      On possible exemptions issues, the Authority first rejects the possibility of category exemption within the meaning of the EU Block Exemption Regulation No 330/2010, the anti-competitive practice being comparable to a restriction characterized by passive sales within the meaning of Article 4, para. (c). Possibility of an individual exemption was also rejected by the Authority after examining any efficiency gains related to this «put in hand» obligation.

      The Authority could have taken advantage of this particular case, to refine the Pierre Fabre / Bang & Olufsen case law and validate and update sales restrictions on the Internet when the proper nature or quality of products justifies such a restriction.

      In summary, the marketing of products involving high technicality or which tend to be dangerous by using it:

      • justifies the implementation of a selective distribution network;
      • may be prohibited on third party platforms (if the selective distribution network is considered lawful);
      • could not be restricted on the websites of authorized distributors of a lawful selective network, for lack of «efficiency gain» in favor of consumers, according to a very (too?) strict position of the AdlC.

      On this last point, it will probably be necessary to wait for a clearer solution given by the Court of Appeal of Paris (in front of which a recourse is now pending) or the Court of Cassation.

      Very frequently, different business settings present the opportunity to sign a Non-Disclosure Agreement (“NDA”) and a Memorandum of Understanding (“MoU”) or Letter of Intent (“LoI”), so much so that these three acronyms – NDA, MoU and Lol – are now commonly used, particularly throughout international negotiations.

      However, often times, these contracts are used in an improper way and with different purposes than those for which they were established in international commercial praxis, with the result that they are either not useful because they do not effectively protect the parties’ interests, or are counterproductive.

      We shall start by taking a look at the characteristics of the Non-Disclosure Agreement – NDA – and how it should be used.

      What is a NDA?

      The NDA is an agreement whose function is to protect the confidential information that the parties (generally identified, respectively as the “Disclosing Party” and the “Receiving Party”) intend sharing, in different possible scenarios: forwarding of information for a preliminary due diligence relating to an investment, the evaluation of commercial data for a distribution contract, technical specifications related to a certain product that is subject of transfer of technology etc.

      The first step of the negotiations, in fact, often requires that different types of information whether technical, financial or commercial, are made available by one or both parties, and the need for this information to remain confidential (hereinafter the “Confidential Information”) during and after the conclusion of the negotiations.

      NDA – Who are the parties?

      Right from the recitals of the agreement, it is very important to correctly identify the parties obliged to safeguard the information and maintain its confidentiality, especially when group companies are involved, and where the interlocutors may be many and located in different countries. In such cases, it is advisable to oblige the Receiving Party to guarantee confidentiality by all the companies by means of a specific clause. It is also important that the agreement accurately indicates the people belonging to the Receiving Party’s organization (such as: employees, technical consultants, experts, collaborators, etc.) who have a right to access the information, if possible by signing a confidentiality agreement by all the people involved.

      NDA – What is Confidential Information?

      The use of recycled NDA templates, found on forms or proposed by the counterparty is certainly not a recommended practice, but unfortunately one that is very widespread. These templates are very often generic and include broad definitions of Confidential Information as well as very detailed lists which actually include all contents of a business activity, often including areas that are not applicable to the object of the activity being negotiated, or information that is actually not reserved.

      The problem regarding these templates is that it is difficult, ex post, to verify whether certain information  would have been included in the Confidential Information, for example either because it would be difficult to determine whether the Receiving Party would have already been in possession before the signing of the NDA, or because the information would not have been expressly mentioned in a clause that contains a very detailed list, but which does not include the individual piece of information that is of interest, or lastly because after the signing of the NDA, the Confidential Information would have been shared using non-secure and non-traceable procedures (for example as an email attachment).

      The best way to proceed is that of identifying in a very specific way only the information that needs to be shared, listing the documents in an attachment to the NDA, thereafter making them available in a format that leaves no doubt regarding their confidentiality, for example by marking them with a watermark or stamp “Confidential under NDA”. Furthermore, a good praxis is to provide access to the Confidential Information only through a secure way (such as a reserved cloud , accessible only through an individual user name and password that is given to authorized people).

      NDA – Prohibition from using the Confidential Information

      Often times through the standard NDA templates, the Receiving Party is only obliged to maintain the Confidential Information reserved, without being prohibited from its use which – especially in cases of competitor companies – may be more dangerous than divulging the information: imagine technology development or patents based on data acquired, or the use of lists of clients or other commercial information. To highlight and strengthen this obligation it would be more correct to name the document Non-Disclosure and Non-Use Agreement (“NDNUA”).

      NDA – Duration

      The function of the NDA is to protect the Confidential Information for the entire time during which it needs to be shared between the Parties. It is therefore important to clearly indicate the last moment the information will be used and – in the event that the Receiving Party is in possession of a copy of the Confidential Information – ensure that the Receiving Party returns or destroys the documents and shall maintain the Information reserved and shall refrain from using the Information for a few months (better years) following the termination of the NDA.

      Breach of the NDA

      Attempting to quantify the damages resulting from a breach of the confidentiality clause is generally very complex: it may therefore be useful to provide for a penalty clause, that establishes a certain amount for the damage deriving from a contractual non-fulfilment. To this effect it is important to consider that the estimate of the penalty shall be reasonable in relation to the damage assumed to derive from the breach of confidentiality, and that different types of penalties can be established according to different cases of non-fulfilment (for example, registration or counterfeit of a patent through the use of shared technical information, or contact with certain business partners).

      There is also another advantage inserting a penalty clause in the NDA: if during the negotiations the Receiving Party objects to the clause or requests it to be reduced, it may indicate a mental reservation of default, and in any case is symptomatic of a fear of having to pay this amount, which would have no reason to exist if the party intended abiding strictly to the contractual obligations.

      NDA – Litigation, jurisdiction and applicable law

      Even in this case there is an unfortunate practice, which is that of relegating this type of clause to the end of the agreement (concerning the so-called midnight clauses, to this effect you may refer to this post on  legalmondo) and thus not dedicate enough attention to its contents, which may lead to adopting clauses that are completely wrong (or worse still, null).

      In reality this is a very important provision, which leads to ensuring contractual enforcement and/or obtaining a judicial decision that may be executed in a rapid and effective way. There is no solution that applies to all cases and the individual  negotiation need to be considered: for example in an NDA with a Chinese counterpart it may be counterproductive to choose the Italian jurisdiction and apply Italian law, given that in the event of non-fulfilment it is usually necessary to take legal action and enforce the judicial or arbitral decision in China (even with interim – urgent measures). It would therefore be more opportune, to draft an NDA with an English/Chinese bilingual text and provide for an arbitration in China, applying Chinese law.

      NDA – Conclusion

      The NDA is a fundamental tool to protect confidential information, and this can be achieved only if it is well drafted, taking into consideration the specific case at hand: it is advisable to refrain from the “do-it-yourself” and seek legal advice from a lawyer who knows how to draw up an NDA bearing in mind all the characteristics of this type of contract  (type of negotiation, information to be shared, location of the parties and countries where the NDA will be executed).

      Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

      It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

      And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

      The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

      The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

      1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

      Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

      1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
      2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
      3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
      4. Costs are reasonable and known in advance.
      5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

      To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project

      El Código Civil y Comercial de la República Argentina (el “Código”) no contiene artículos específicos para los contratos de distribución. Por ello, al contrato de distribución se lo considera como un “contrato innominado”, el cual contiene, entre otras cosas, elementos de los contratos de compraventa, agencia y mandato. Por lo tanto, si el contrato de distribución no posee una regla específica para un caso particular, las partes deben aplicar por analogía los artículos de estos tres tipos de contratos (compraventa, agencia y mandato) como reglas standard hasta el punto de que sean aplicables en casa caso. Asimismo, el Artículo 1511 del Código establece que las reglas del Capítulo 18 (Contratos de Concesión) aplicarán para los Contratos de Distribución cuando corresponda.

      Forma

      El Código no requiere de ninguna forma en particular para celebrar este tipo de contratos. Sin embargo, comunmente estos contratos se realizan por escrito.

      Cláusulas Importantes

      Para todas las partes:

      1. a) Fuerza Mayor: considerando que en la Argentina tiende a existir un ambiente inestable para los negocios debido a razones políticas, las partes deben considerar la posibilidad de incluir en los contratos cláusulas de “cambios de legislación” o “acciones de gobierno” dentro de la definición de fuerza mayor.
      2. b) Seguro de los productos. Es importante que en caso de suceder algún siniestro con los productos, los mismos estén cubiertos para no perder todo el dinero de los mismos.
      3. c) Registración del producto.

      Para el proveedor:

      1. a) Pago (si es internacional, sin impuestos, cláusulas para recibir el monto total sin deducciones o retenciones).
      2. b) Moneda (en virtud de la inestabilidad del Peso Argentino, es importante establecer cláusulas de reajuste de precio o establecer el precio en Dólares Estadounidenses).
      3. c) Recall del Producto.
      4. d) Tiempo de entrega.
      5. e) Retrasos.
      6. f) Condiciones del stock.

      Para el distribuidor:

      1. a) Retornos.
      2. b) Compensación de clientela.
      3. c) Producto defectuoso.
      4. d) Muestras del producto.

      Incoterms

      En los contratos de distribución nacionales no es usual utilizar Incoterms. Sin embargo, en los contratos de distribución internacionales, es común utilizar los siguientes Incoterms:

      Para el transporte aereo: FCA (Free Carrier); para el transporte por barco: FOB(Free On Board).

      Responsabilidad sobre el Producto

      Conforme la Ley Nº 24.240 de Defensa del Consumidor, el consumidor tiene un plazo de 3 años para realizar un reclamo contra el distribudor y/o el proveedor, mientras que para otras partes de la cadena de comercialización, los cuales tiene una relación contractual directa con el distribuidor y/o proveedor (ej: minoristas que adquirieron los productos del distribuidor y/o un subcontratista del distribuidor), el plazo es de 10 años. En cualquier caso, los partes deben estar interesados en la posibilidad de establecer que el plazo de 3 años comience a contarse desde la fecha de vencimiento de los productos en lugar de la fecha de terminación del contrato (ej: un producto puede ser guardado y no vendido por un tiempo y por ende el plazo de 3 años retrasarse).

      Propiedad Intelectual

      El proveedor debe realizar y renovar la registración de las marcas de los productos en Argentina. En función de ello, es importante incluir una cláusula en el contrato que establezca que las marcas son de propiedad del proveedor y que el distribuidor únicamente puede usarlas en la medida que tenga autorización por parte del proveedor mientras se encuentre vigente el contrato. Asimismo, el distribuidor debe proteger las marcas del proveedor.

      Resolución

      Las Partes pueden acordar libremente como podrá resolverse el contrato. En caso de existir un cláusula de resolución sin causa, la misma debe tener un preaviso razonable para que la otra parte pueda conseguir otro distribuidor o enfrentar la pérdida del cliente, dependiendo quien ejerza la opción.

      Ley Aplicable y Jurisdicción

      Las partes pueden pactar la ley que consideren mejor para resolver cualqueir asunto del contrato. Asimismo, las partes también podrán elegir libremente que tribunal o arbitraje elegir dentro del país o en el extranjero.

      El autor de este post es Tomás García Navarro.

      President Erdogan made a presidential decree that mandatorily requires use of Turkish lira for transactions concluded between parties resident in Turkey. The Decree amending the Decree on Protecting the value of Turkish Lira, (The Decree) is published in the Official Gazette and came into force on 13th September 2018.

      The Decree orders use of Turkish Lira for purchase and sale of all kinds of goods, commodities, services and real estate. All kinds of lease and rental of vehicles and all kinds of goods and real estate must also be made by using Turkish Liras. The decree also stipulates that no reference to currency exchange tying a contract payment or value to foreign currency can be made and the all contracts between Turkish residents even if foreign owned must be based on Turkish Liras.

      Let’s see the changes introduced by the regulation point by point.

      No Use of Foreign Currency in domestic Contracts

      New currency policy states that all payments related to contracts between local parties i.e. Turkish Residents whether legal persons or real persons must be made in Turkish liras.

      Accordingly all real estate transactions must be made in Turkish liras and no reference can be made to foreign currencies.

      All Contracts Must be Amended within 30 days

      The Decree establishes also that all contracts between Turkish residents made before 13th September 2018 must be amended and the payments must be converted into Turkish liras from any foreign currency within 30 days from the publish date of The Decree (13th September 2018): this shall mean that all contracts based on foreign currencies must be amended within 14th October 2018.

      There is no reference to a currency exchange rate when amending contracts into Turkish Liras. The parties are free to agree on any currency rate when amending however this cannot be stipulated in the contract but only for negotiation purposed when drafting the amendment.

      The governmental projects which have been signed earlier should be coordinated with the related authority and adaption should be made in line with the new currency regime.

      Import and Export of Goods and Services

      The new decree does not impact an export or import relation, as long as one of the parties is not Turkish resident. However one must note that The Decree may have an impact on Turkish based subsidiaries of multinational companies trading with foreign currency.

      There is no limitation in bringing foreign currency into country.

      Sanctions

      New foreign currency policy does not address any criminal or administrative sanctions. New regulations should be expected to implement the practice of The Decree. Needless to say, if one of the parties of an existing contract based on foreign currency will be eager to take the matter to the civil courts if no amendment is made within 30 days and easily obtain a court decision for amendment.

      Conclusion

      This move is considered as one of the steps of measure step to support the ailing local currency.

      Slipping Turkish Liras has been an on-going concern for Turkey in last 6 months. The sudden drop of Turkish Liras exchange rate urged the government to find a quick cure to increase the value of Turkish liras or at least to maintain the status.

      Those days, some rough policies have been adopted by governments to safeguard the fragile Turkish Lira. The measures taken indeed prevented Turkish economy to accelerate and take off. With the new liberal look after 1983 elections many of these hard measures were lifted and the law on Protection of Turkish Liras was eased. The era before 1980s when there were hard policies applied to protect Turkish Lira was in a different world than today.

      The latest measure may or may not address an improvement but it is a fact that many foreign investors or local investors funded by foreign institutions will have to struggle due to the new regulations pushing them to amend their contracts into Turkish Liras from foreign currencies.

      Not what you would expect 

      When can you terminate, how should you terminate, and how much are you exposed?!

      The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.

      This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.

      However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.

      In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.

      Nevertheless, often the international corporation decides for various reasons (such as establishing an «in-house» operation» in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.

      What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?

      Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.

      Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.

      As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.

      The truth is the reasonability of the due notice varies from case to case!

      However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to «justify» avoiding a due notice period or adequate compensation.

      In this respect, in many cases simple «non-satisfaction» was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.

      There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.

      Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.

      Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.

      The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.

      In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.

      It is often the case – in practice – that an ongoing commercial relationship builds slowly over time through a series of sales agreements, without the parties ever signing an actual distribution agreement to set down their respective rights and responsibilities.

      At first blush this might appear to be a good thing: one can sidestep being bound, especially long-term, to the other party. But on closer scrutiny the solution becomes problematic, especially for anyone operating internationally.

      One of the key issues that arises when an international contractual arrangement is not in writing, is identifying the court with jurisdiction over any dispute arising therefrom. In the European Union, the issue is resolved by the provisions of Regulation 1215/2012 (“Brussels I recast”). Pursuant to Article 7 of the Regulation, as an alternative to the defendant’s courts, jurisdiction in a contractual dispute may lie with the court in the place of performance of the obligation in question. Next to this general rule are two criteria to identify the “place of performance”, differentiated according to the type of contract at issue. For a contract for goods, it is the place of delivery for the goods; in a contract for services, it is the place where the services are provided.   

      Thus, to identify the court with jurisdiction, it is crucial that a contract fall under one of these categories: goods or services.

      No doubt this distinction is quite simple in many circumstances. In the case of a distribution agreement, or of a commercial concession agreement, the issue may become thorny.

      The European Court of Justice has analysed this issue on a number of occasions, most recently in their judgement of 8 March 2018 (Case no. C-64/17) following the request for a preliminary ruling from a Portuguese Court of Appeal. The parties to the action were a Portuguese distributor, a company called Lusavouga, and a Belgian company called Saey Home & Garden, that produced articles for the home and garden, including a line of products branded “Barbecook”.

      Following Saey’s decision to break off the commercial relationship – notice of which was sent in an email dated 17 July 2014 – Lusavouga brought action in Portugal seeking compensation for the unexpected termination of the agreement, and goodwill indemnity. Saey raised a plea of lack of jurisdiction of the Portuguese court, citing their general conditions of sale (mentioned in their invoices) which required that a Court in Belgium be competent for dispute resolution.

      The facts thus presented two issues to be resolved in light of the Brussels I recast Regulation: deciding whether a jurisdiction clause in a vendor’s general terms and conditions pursuant to Art. 25 of the Regulation shall apply, and, if not, choosing the court with jurisdiction under Art. 7 of the Regulation.

      Shall a jurisdiction clause contained within a vendor’s general terms and conditions apply to a distribution relationship?

      The supplier company apparently considered their course of dealing with the Portuguese retailer nothing more than a concatenation of individual sales of goods, governed by their general terms and conditions. Consequently, they argued that any dispute arising from the relationship should be subject to the jurisdiction clause identifying Belgium as the court with jurisdiction under those terms and conditions.

      Thus, a determination was needed on whether, under these facts, there was a valid prorogation of jurisdiction under Article 25, paragraph 1 of Regulation 1215/2012.

      The Court of Justice has long opined that if the jurisdiction clause is included in the general contract conditions drafted by one of the parties, the contract signed by the other party must contain an express reference to those general conditions in order to ensure the real consent thereto by the parties (judgement of 14 December 1976, Estasis Salotti di Colzani, case no. 24/76; judgement of 16 March 1999, Castelletti, case no. C-159/97; judgement of 7 July 2016, Höszig, case no. C-225/15). Moreover, to be valid, the clause must involve a particular legal relationship (judgement of 20 April 2016, Profit Investment SIM, case no. C-366/13).

      In the instant case, the referring court found it self-evident that the legal relationship at bar was a commercial concession agreement entered into for the purpose of distributing Saey products in Spain, a contract that was not evidenced in writing.

      From this perspective, it is clear that the general conditions contained in the Saey invoices could have no bearing on the commercial concession agreement: assuming Lusavouga’s consent had been proven, the selection of Belgium as the forum would have applied if anything to the individual sales agreements, but not to those duties arising from the separate distribution agreement.

      What, then, would be the court with jurisdiction for the duties arising from the commercial concession agreement?

      Absent any jurisdiction clause, the issue would be decided under Art. 7, point 1 of Regulation 1215/2012, under which it becomes imperative to establish whether a contract is for goods or for services.

      The “provision of services” has been defined by the Court of Justice as an activity, not mere omissions, undertaken in return for remuneration (judgement of 23 April 2009, Falco, case no. C-533/07).

      With the judgements in Corman Collins of 19 December 2013 (case no. C-9/12), and Granarolo of 14 July 2016 (case no. C-196/15), the Court held that in a typical distribution agreement, the dealer renders a service, in that they are involved in increasing the distribution of supplier’s product, and receives in consideration therefor a competitive advantage, access to advertising platforms, know-how, or payment facilities. In light of such elements, the contract relationship should be deemed one for services. If on the other hand the commercial relationship is limited to a concatenation of agreements, each for the purpose of a delivery and pickup of merchandise, then what we have is not a typical distribution agreement, and the contractual relationship shall be construed as one for the sale of goods.

      Once the contract has been categorised as one for services, one must then determine “the place where, under the contract, the services are provided”. The Court specifies that such location shall be understood as the member state of the place of the main provision of services, as it follows from the provisions of the contract  or – as in the case at issue – the actual performance of the same. Only where it is impossible to identify such location shall the domicile of the party rendering the service be used.

      From the referring court’s description of the contractual relationship, and from the Court of Justice’s understanding of the distributor’s performance of services, it would be logical to find that the principal location for performance of services was Spain, where Lusavouga “was involved in increasing the distribution of products” of Saey.

      It is clear that neither the manufacturer nor the distributor would ever have intended such a result, and they might have avoided it being chosen for them by reducing their agreement in writing, including a jurisdiction clause therein.

      By the same token, viewed from the outside, the Portuguese judges’ apparent conviction that the situation was one of an actual dealership contract would leave ample room for debate. After all, a number of elements would lead to the opposite conclusion. However, even in terms of that aspect, the absence of a written contract left room for interpretation that might lead to unforeseen – and perhaps rather risky – consequences.

      In conclusion, the wisdom of setting down the terms and conditions of a sales distribution agreement in writing appears clear. This is not only because one can avoid those ambiguities we have described above, but also because it specifies other important clauses stipulated by the parties that should not be left to chance: exclusivity of area, if any, or with respect to specific sales channels, the contract period and termination notice, any duties to promote the product, control over end-user personal data, and the possibility of, and methods for, any online sales of products.

      Benedikt Rohrssen

      Áreas de práctica

      • Agencia
      • Contratos de distribución
      • e-commerce
      • Franquicia
      • Inversiones
      Contáctanos Benedikt

      Contacta con Benedikt





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        EU geoblocking ban – New strategy for e-commerce websites

        14 de junio de 2018

        • Europa
        • Francia
        • Antitrust
        • Contratos de distribución
        • e-commerce

        On 1 January, the new Packaging Act (“Verpackungsgesetz”) will replace the existing Packaging Ordinance (“Verpackungsverordnung”). Non-compliance with the new rules may have very unpleasant consequences.

        For those who sell packaged goods to end consumers in Germany it is high noon: they have to adapt to the new packaging law, which comes into force on January 1, 2019.

        The main objective of the new law is that in the future all concerned parties will have to take responsibility and bear the costs of disposing their packaging. The legislator also wants to achieve the increase of the recycling rate of paper, plastic, metal or glass packaging, and to use as many readily recyclable materials as possible. Therefore, the fee that producers or distributors must pay for disposal will in future not only depend on the quantity and material type, but also more on the recyclability of the packaging.

        Who is affected by this law?

        Manufacturers, online dealers and distributors of packaged goods of all kinds.

        Affected are all so-called initial distributors of packaging, which typically end up at the private end consumer. These can be manufacturers, online dealers and distributors of packaged goods of all kinds, whether food, electrical appliances or furniture.

        All of them, if they place packaging on the market for the first time, must register with one of the dual systems already today and, depending on the quantity and material of the packaging waste, pay a participation fee to the German take-back system.

        It is new from next year on that they additionally have to register with the Central Agency Packaging Register and specify the amount of waste.

        This information will be publicly available. By doing so, the legislator wants to create transparency and ensure that all those who place «packaging» on the market fulfill their obligations.

        Also new is that the fees, which so far have been simply calculated according to quantity and type of material, should in future also depend on how well a material can be recycled.

        For example: Cardboard boxes, which usually consist of two-thirds of waste paper, are easily recyclable, as are aluminium cans, which can be reused to 100 percent. By contrast, the notorious coffee-to-go cups are not recyclable because they consist of a quasi-inseparable composite material.

        How exactly the gradations will look is not yet certain, as the dual systems still work on the implementation.

        Further innovations for beverage manufacturers and distributors

        The law contains several other changes that are particularly important for beverage manufacturers and distributors. The compulsory deposit for disposable containers will be extended to include a few types of beverages that were previously exempted, such as carbonated fruit and vegetable nectars. A new duty has been introduced for retailers, who must point out «with clearly visible signs» on disposable and reusable beverage packaging.As from 1st of January 2019 companies must also file the so-called Declaration of Compliance (“Vollstaendigkeitserklaerung”) with the Central Agency Packaging Register and not anymore with the respective local Chamber of Industry and Commerce.

        What is the Declaration of Compliance?

        A Declaration of Compliance is a verification concerning the volumes of sales packaging placed into the market by a manufacturer / distributor within one calendar year.

        The filing of the Declaration of Compliance, however, only affects larger manufacturers, since the de minimis limits are set quite high in this respect. For paper, cardboard or carton it is about 80 tons per year.

        Pre-registration is already possible as from September 2018. It is important to note, however, that every company involved in the system must perform the registration and data reporting «personally», meaning that this process may not be transferred to third parties.

        The respective database run by the Central Agency Packaging Register is called LUCID. Manufacturers, online dealers or initial distributors who preregister with LUCID will receive a provisional registration number, which will be sent to the Dual system with which they can sign a contract. There are currently nine companies offering this. Manufacturers who preregister in 2018 will automatically receive a registration confirmation from the Central Agency Packaging Register at the beginning of 2019. The registration including the indication of quantities is free and can be done online.

        The Central Agency Packaging Register is also responsible to monitor compliance with the regulations. However, at the end of the day, everyone can check the respective compliance as LUCID is a transparent register and open to everyone to search the register for specific manufacturers and brands.

        The law explains why this can have quite unpleasant consequences:

        In case the registration is omitted, there is automatically a ban on distribution of the packaging and there is a threat of fines to be imposed which may range up to 100.000 €! Due to the publicity of the register, agents not complying with the law may have to expect that their goods will be discontinued in the German trade.

        Still unclear issues

        The definition of packaging covered by this law is not quite clear. Transport packaging such as that used by a manufacturer for delivery to the dealer and disposed of there, for example, is not affected by the obligation to participate at the system and the new registration obligation. This packaging does not end up at the private end consumer. But what about wine boxes, for example? They are often only transport packaging, but some customers may take a whole box of their favorite wine with them. In addition, hotels and restaurants, such as those supplied by a retailer, are considered by law to be private end consumers.

        The author of this post is Olga Dimopoulou

        In a recent decision on the 24th of October 2018 (n°18-D-23), the French Competition Authority (Autorité de la Concurrence, aka AdlC) fined the Stihl company (leader in mechanized culture products) for his practices in his selective distribution network. Stihl managed to restrict the sale of its products by its authorized distributors on their own website and to prohibit them from marketing them on third-party platforms.

        The ruling is considered by the AdlC as having «vocation to clarify the framework applicable in France for the different sectors and products, beyond the sole sector of the mechanized culture».

        In this case the network implemented by the supplier was a selective distribution network. Therefore, AdlC’s position can only concern the implementation of a selective distribution network and is not applicable to an exclusive distribution network (see our Update Distribution/Competition, April 2018).

        1. The lawfulness of the selective distribution network

        The Authority follows the traditional analysis of validity of a selective distribution network. First, it highlights that selection of resellers was based on objective criteria such as qualitative nature, applied in a uniform manner and without any discrimination.

        Then, the Authority had to determine whether the qualitative criterion conditioning the lawfulness of the selective distribution system was fulfilled or not. The Authority has decided that the fact that products in question are of a delicate assembly and that some of them even present risks for safety of users, justifies setting up a network of selective distribution.

        1. The lawfulness of the ban on selling technical products on third-party platforms

        The decision of the AdlC was especially expected on this point because it had to take into account rulings rendered by the CJEU and then by the Paris Court of Appeal in the Coty cases ((CJUE 6/12/17, affaire 230/16; Cour d’appel de Paris, pôle 5, ch 4, 28 février 2018, n° 16/02263). The question was: the right of suppliers to prohibit their authorized distributors from distributing their products on third-party platforms is limited to luxury goods only (the Coty hypothesis) or could be extended to include others products? The hypothesis of this extension had already been addressed by other courts in Europe and also by the Advocate General before the CJEU (see our Update Distribution/Competition, December 2017) and then by the European Commission.

        In a nutshell the Authority extends the Coty case law to technical products whether they are dangerous or not.

        First of all, the Authority notes that «prohibition to sell on platforms contributes to preserving the safety of consumers and to guaranteeing the brand image and the quality of the products concerned».

        Then, the Authority checked whether this restriction did not go beyond what is necessary in regards to characteristics of products in question. It notes that in the case of third-party platforms, this restriction allows supplier to control that its distributors comply with requirements of distribution network.

        Finally, the AdlC checked whether this prohibition was not disproportionate, and in this case, noted that there is no disproportion in so far as distribution on third-party marketplaces is not a main marketing channel for mechanized culture products.

        This result (validation of the ban on the sale of products on third-party platforms) may allow many economic operators to believe legitimately that the scope of the Coty case law can be broad.

        1. Prohibition of restrictions on resale of products on distributors’ websites

        However the AdlC has refused to approve the clause restricting resale of products by distributors on their own websites.

        In this case, if customers of the distributors could place an order online, they had to, for products with a certain dangerous nature (such as chainsaw, pruner, brushcutter, etc.) either come to withdraw the product at a (physical) sell point owned by distributor or to be delivered by the distributor. Distributor had indeed underwritten a complete obligation to «put in hand» the machine, including the oral communication of usage instructions and a demonstration.

        The AdlC decided that this obligation to put in hand was actually to cancel advantages attached to Internet selling and thus to prohibit purely and simply Internet selling. According to the Authority, this restriction went beyond what is necessary to preserve consumer’s health.

        The AdlC had to determine whether this restriction was a restriction by object or effect. According to the Authority, the restriction at stake reduced the ability of distributors to sell products outside their usual customers catchment area, and as such should be characterized as a competitive restriction by object.

        On possible exemptions issues, the Authority first rejects the possibility of category exemption within the meaning of the EU Block Exemption Regulation No 330/2010, the anti-competitive practice being comparable to a restriction characterized by passive sales within the meaning of Article 4, para. (c). Possibility of an individual exemption was also rejected by the Authority after examining any efficiency gains related to this «put in hand» obligation.

        The Authority could have taken advantage of this particular case, to refine the Pierre Fabre / Bang & Olufsen case law and validate and update sales restrictions on the Internet when the proper nature or quality of products justifies such a restriction.

        In summary, the marketing of products involving high technicality or which tend to be dangerous by using it:

        • justifies the implementation of a selective distribution network;
        • may be prohibited on third party platforms (if the selective distribution network is considered lawful);
        • could not be restricted on the websites of authorized distributors of a lawful selective network, for lack of «efficiency gain» in favor of consumers, according to a very (too?) strict position of the AdlC.

        On this last point, it will probably be necessary to wait for a clearer solution given by the Court of Appeal of Paris (in front of which a recourse is now pending) or the Court of Cassation.

        Very frequently, different business settings present the opportunity to sign a Non-Disclosure Agreement (“NDA”) and a Memorandum of Understanding (“MoU”) or Letter of Intent (“LoI”), so much so that these three acronyms – NDA, MoU and Lol – are now commonly used, particularly throughout international negotiations.

        However, often times, these contracts are used in an improper way and with different purposes than those for which they were established in international commercial praxis, with the result that they are either not useful because they do not effectively protect the parties’ interests, or are counterproductive.

        We shall start by taking a look at the characteristics of the Non-Disclosure Agreement – NDA – and how it should be used.

        What is a NDA?

        The NDA is an agreement whose function is to protect the confidential information that the parties (generally identified, respectively as the “Disclosing Party” and the “Receiving Party”) intend sharing, in different possible scenarios: forwarding of information for a preliminary due diligence relating to an investment, the evaluation of commercial data for a distribution contract, technical specifications related to a certain product that is subject of transfer of technology etc.

        The first step of the negotiations, in fact, often requires that different types of information whether technical, financial or commercial, are made available by one or both parties, and the need for this information to remain confidential (hereinafter the “Confidential Information”) during and after the conclusion of the negotiations.

        NDA – Who are the parties?

        Right from the recitals of the agreement, it is very important to correctly identify the parties obliged to safeguard the information and maintain its confidentiality, especially when group companies are involved, and where the interlocutors may be many and located in different countries. In such cases, it is advisable to oblige the Receiving Party to guarantee confidentiality by all the companies by means of a specific clause. It is also important that the agreement accurately indicates the people belonging to the Receiving Party’s organization (such as: employees, technical consultants, experts, collaborators, etc.) who have a right to access the information, if possible by signing a confidentiality agreement by all the people involved.

        NDA – What is Confidential Information?

        The use of recycled NDA templates, found on forms or proposed by the counterparty is certainly not a recommended practice, but unfortunately one that is very widespread. These templates are very often generic and include broad definitions of Confidential Information as well as very detailed lists which actually include all contents of a business activity, often including areas that are not applicable to the object of the activity being negotiated, or information that is actually not reserved.

        The problem regarding these templates is that it is difficult, ex post, to verify whether certain information  would have been included in the Confidential Information, for example either because it would be difficult to determine whether the Receiving Party would have already been in possession before the signing of the NDA, or because the information would not have been expressly mentioned in a clause that contains a very detailed list, but which does not include the individual piece of information that is of interest, or lastly because after the signing of the NDA, the Confidential Information would have been shared using non-secure and non-traceable procedures (for example as an email attachment).

        The best way to proceed is that of identifying in a very specific way only the information that needs to be shared, listing the documents in an attachment to the NDA, thereafter making them available in a format that leaves no doubt regarding their confidentiality, for example by marking them with a watermark or stamp “Confidential under NDA”. Furthermore, a good praxis is to provide access to the Confidential Information only through a secure way (such as a reserved cloud , accessible only through an individual user name and password that is given to authorized people).

        NDA – Prohibition from using the Confidential Information

        Often times through the standard NDA templates, the Receiving Party is only obliged to maintain the Confidential Information reserved, without being prohibited from its use which – especially in cases of competitor companies – may be more dangerous than divulging the information: imagine technology development or patents based on data acquired, or the use of lists of clients or other commercial information. To highlight and strengthen this obligation it would be more correct to name the document Non-Disclosure and Non-Use Agreement (“NDNUA”).

        NDA – Duration

        The function of the NDA is to protect the Confidential Information for the entire time during which it needs to be shared between the Parties. It is therefore important to clearly indicate the last moment the information will be used and – in the event that the Receiving Party is in possession of a copy of the Confidential Information – ensure that the Receiving Party returns or destroys the documents and shall maintain the Information reserved and shall refrain from using the Information for a few months (better years) following the termination of the NDA.

        Breach of the NDA

        Attempting to quantify the damages resulting from a breach of the confidentiality clause is generally very complex: it may therefore be useful to provide for a penalty clause, that establishes a certain amount for the damage deriving from a contractual non-fulfilment. To this effect it is important to consider that the estimate of the penalty shall be reasonable in relation to the damage assumed to derive from the breach of confidentiality, and that different types of penalties can be established according to different cases of non-fulfilment (for example, registration or counterfeit of a patent through the use of shared technical information, or contact with certain business partners).

        There is also another advantage inserting a penalty clause in the NDA: if during the negotiations the Receiving Party objects to the clause or requests it to be reduced, it may indicate a mental reservation of default, and in any case is symptomatic of a fear of having to pay this amount, which would have no reason to exist if the party intended abiding strictly to the contractual obligations.

        NDA – Litigation, jurisdiction and applicable law

        Even in this case there is an unfortunate practice, which is that of relegating this type of clause to the end of the agreement (concerning the so-called midnight clauses, to this effect you may refer to this post on  legalmondo) and thus not dedicate enough attention to its contents, which may lead to adopting clauses that are completely wrong (or worse still, null).

        In reality this is a very important provision, which leads to ensuring contractual enforcement and/or obtaining a judicial decision that may be executed in a rapid and effective way. There is no solution that applies to all cases and the individual  negotiation need to be considered: for example in an NDA with a Chinese counterpart it may be counterproductive to choose the Italian jurisdiction and apply Italian law, given that in the event of non-fulfilment it is usually necessary to take legal action and enforce the judicial or arbitral decision in China (even with interim – urgent measures). It would therefore be more opportune, to draft an NDA with an English/Chinese bilingual text and provide for an arbitration in China, applying Chinese law.

        NDA – Conclusion

        The NDA is a fundamental tool to protect confidential information, and this can be achieved only if it is well drafted, taking into consideration the specific case at hand: it is advisable to refrain from the “do-it-yourself” and seek legal advice from a lawyer who knows how to draw up an NDA bearing in mind all the characteristics of this type of contract  (type of negotiation, information to be shared, location of the parties and countries where the NDA will be executed).

        Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

        It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

        And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

        The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

        The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

        1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

        Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

        1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
        2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
        3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
        4. Costs are reasonable and known in advance.
        5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

        To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project

        El Código Civil y Comercial de la República Argentina (el “Código”) no contiene artículos específicos para los contratos de distribución. Por ello, al contrato de distribución se lo considera como un “contrato innominado”, el cual contiene, entre otras cosas, elementos de los contratos de compraventa, agencia y mandato. Por lo tanto, si el contrato de distribución no posee una regla específica para un caso particular, las partes deben aplicar por analogía los artículos de estos tres tipos de contratos (compraventa, agencia y mandato) como reglas standard hasta el punto de que sean aplicables en casa caso. Asimismo, el Artículo 1511 del Código establece que las reglas del Capítulo 18 (Contratos de Concesión) aplicarán para los Contratos de Distribución cuando corresponda.

        Forma

        El Código no requiere de ninguna forma en particular para celebrar este tipo de contratos. Sin embargo, comunmente estos contratos se realizan por escrito.

        Cláusulas Importantes

        Para todas las partes:

        1. a) Fuerza Mayor: considerando que en la Argentina tiende a existir un ambiente inestable para los negocios debido a razones políticas, las partes deben considerar la posibilidad de incluir en los contratos cláusulas de “cambios de legislación” o “acciones de gobierno” dentro de la definición de fuerza mayor.
        2. b) Seguro de los productos. Es importante que en caso de suceder algún siniestro con los productos, los mismos estén cubiertos para no perder todo el dinero de los mismos.
        3. c) Registración del producto.

        Para el proveedor:

        1. a) Pago (si es internacional, sin impuestos, cláusulas para recibir el monto total sin deducciones o retenciones).
        2. b) Moneda (en virtud de la inestabilidad del Peso Argentino, es importante establecer cláusulas de reajuste de precio o establecer el precio en Dólares Estadounidenses).
        3. c) Recall del Producto.
        4. d) Tiempo de entrega.
        5. e) Retrasos.
        6. f) Condiciones del stock.

        Para el distribuidor:

        1. a) Retornos.
        2. b) Compensación de clientela.
        3. c) Producto defectuoso.
        4. d) Muestras del producto.

        Incoterms

        En los contratos de distribución nacionales no es usual utilizar Incoterms. Sin embargo, en los contratos de distribución internacionales, es común utilizar los siguientes Incoterms:

        Para el transporte aereo: FCA (Free Carrier); para el transporte por barco: FOB(Free On Board).

        Responsabilidad sobre el Producto

        Conforme la Ley Nº 24.240 de Defensa del Consumidor, el consumidor tiene un plazo de 3 años para realizar un reclamo contra el distribudor y/o el proveedor, mientras que para otras partes de la cadena de comercialización, los cuales tiene una relación contractual directa con el distribuidor y/o proveedor (ej: minoristas que adquirieron los productos del distribuidor y/o un subcontratista del distribuidor), el plazo es de 10 años. En cualquier caso, los partes deben estar interesados en la posibilidad de establecer que el plazo de 3 años comience a contarse desde la fecha de vencimiento de los productos en lugar de la fecha de terminación del contrato (ej: un producto puede ser guardado y no vendido por un tiempo y por ende el plazo de 3 años retrasarse).

        Propiedad Intelectual

        El proveedor debe realizar y renovar la registración de las marcas de los productos en Argentina. En función de ello, es importante incluir una cláusula en el contrato que establezca que las marcas son de propiedad del proveedor y que el distribuidor únicamente puede usarlas en la medida que tenga autorización por parte del proveedor mientras se encuentre vigente el contrato. Asimismo, el distribuidor debe proteger las marcas del proveedor.

        Resolución

        Las Partes pueden acordar libremente como podrá resolverse el contrato. En caso de existir un cláusula de resolución sin causa, la misma debe tener un preaviso razonable para que la otra parte pueda conseguir otro distribuidor o enfrentar la pérdida del cliente, dependiendo quien ejerza la opción.

        Ley Aplicable y Jurisdicción

        Las partes pueden pactar la ley que consideren mejor para resolver cualqueir asunto del contrato. Asimismo, las partes también podrán elegir libremente que tribunal o arbitraje elegir dentro del país o en el extranjero.

        El autor de este post es Tomás García Navarro.

        President Erdogan made a presidential decree that mandatorily requires use of Turkish lira for transactions concluded between parties resident in Turkey. The Decree amending the Decree on Protecting the value of Turkish Lira, (The Decree) is published in the Official Gazette and came into force on 13th September 2018.

        The Decree orders use of Turkish Lira for purchase and sale of all kinds of goods, commodities, services and real estate. All kinds of lease and rental of vehicles and all kinds of goods and real estate must also be made by using Turkish Liras. The decree also stipulates that no reference to currency exchange tying a contract payment or value to foreign currency can be made and the all contracts between Turkish residents even if foreign owned must be based on Turkish Liras.

        Let’s see the changes introduced by the regulation point by point.

        No Use of Foreign Currency in domestic Contracts

        New currency policy states that all payments related to contracts between local parties i.e. Turkish Residents whether legal persons or real persons must be made in Turkish liras.

        Accordingly all real estate transactions must be made in Turkish liras and no reference can be made to foreign currencies.

        All Contracts Must be Amended within 30 days

        The Decree establishes also that all contracts between Turkish residents made before 13th September 2018 must be amended and the payments must be converted into Turkish liras from any foreign currency within 30 days from the publish date of The Decree (13th September 2018): this shall mean that all contracts based on foreign currencies must be amended within 14th October 2018.

        There is no reference to a currency exchange rate when amending contracts into Turkish Liras. The parties are free to agree on any currency rate when amending however this cannot be stipulated in the contract but only for negotiation purposed when drafting the amendment.

        The governmental projects which have been signed earlier should be coordinated with the related authority and adaption should be made in line with the new currency regime.

        Import and Export of Goods and Services

        The new decree does not impact an export or import relation, as long as one of the parties is not Turkish resident. However one must note that The Decree may have an impact on Turkish based subsidiaries of multinational companies trading with foreign currency.

        There is no limitation in bringing foreign currency into country.

        Sanctions

        New foreign currency policy does not address any criminal or administrative sanctions. New regulations should be expected to implement the practice of The Decree. Needless to say, if one of the parties of an existing contract based on foreign currency will be eager to take the matter to the civil courts if no amendment is made within 30 days and easily obtain a court decision for amendment.

        Conclusion

        This move is considered as one of the steps of measure step to support the ailing local currency.

        Slipping Turkish Liras has been an on-going concern for Turkey in last 6 months. The sudden drop of Turkish Liras exchange rate urged the government to find a quick cure to increase the value of Turkish liras or at least to maintain the status.

        Those days, some rough policies have been adopted by governments to safeguard the fragile Turkish Lira. The measures taken indeed prevented Turkish economy to accelerate and take off. With the new liberal look after 1983 elections many of these hard measures were lifted and the law on Protection of Turkish Liras was eased. The era before 1980s when there were hard policies applied to protect Turkish Lira was in a different world than today.

        The latest measure may or may not address an improvement but it is a fact that many foreign investors or local investors funded by foreign institutions will have to struggle due to the new regulations pushing them to amend their contracts into Turkish Liras from foreign currencies.

        Not what you would expect 

        When can you terminate, how should you terminate, and how much are you exposed?!

        The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.

        This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.

        However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.

        In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.

        Nevertheless, often the international corporation decides for various reasons (such as establishing an «in-house» operation» in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.

        What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?

        Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.

        Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.

        As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.

        The truth is the reasonability of the due notice varies from case to case!

        However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to «justify» avoiding a due notice period or adequate compensation.

        In this respect, in many cases simple «non-satisfaction» was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.

        There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.

        Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.

        Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.

        The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.

        In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.

        It is often the case – in practice – that an ongoing commercial relationship builds slowly over time through a series of sales agreements, without the parties ever signing an actual distribution agreement to set down their respective rights and responsibilities.

        At first blush this might appear to be a good thing: one can sidestep being bound, especially long-term, to the other party. But on closer scrutiny the solution becomes problematic, especially for anyone operating internationally.

        One of the key issues that arises when an international contractual arrangement is not in writing, is identifying the court with jurisdiction over any dispute arising therefrom. In the European Union, the issue is resolved by the provisions of Regulation 1215/2012 (“Brussels I recast”). Pursuant to Article 7 of the Regulation, as an alternative to the defendant’s courts, jurisdiction in a contractual dispute may lie with the court in the place of performance of the obligation in question. Next to this general rule are two criteria to identify the “place of performance”, differentiated according to the type of contract at issue. For a contract for goods, it is the place of delivery for the goods; in a contract for services, it is the place where the services are provided.   

        Thus, to identify the court with jurisdiction, it is crucial that a contract fall under one of these categories: goods or services.

        No doubt this distinction is quite simple in many circumstances. In the case of a distribution agreement, or of a commercial concession agreement, the issue may become thorny.

        The European Court of Justice has analysed this issue on a number of occasions, most recently in their judgement of 8 March 2018 (Case no. C-64/17) following the request for a preliminary ruling from a Portuguese Court of Appeal. The parties to the action were a Portuguese distributor, a company called Lusavouga, and a Belgian company called Saey Home & Garden, that produced articles for the home and garden, including a line of products branded “Barbecook”.

        Following Saey’s decision to break off the commercial relationship – notice of which was sent in an email dated 17 July 2014 – Lusavouga brought action in Portugal seeking compensation for the unexpected termination of the agreement, and goodwill indemnity. Saey raised a plea of lack of jurisdiction of the Portuguese court, citing their general conditions of sale (mentioned in their invoices) which required that a Court in Belgium be competent for dispute resolution.

        The facts thus presented two issues to be resolved in light of the Brussels I recast Regulation: deciding whether a jurisdiction clause in a vendor’s general terms and conditions pursuant to Art. 25 of the Regulation shall apply, and, if not, choosing the court with jurisdiction under Art. 7 of the Regulation.

        Shall a jurisdiction clause contained within a vendor’s general terms and conditions apply to a distribution relationship?

        The supplier company apparently considered their course of dealing with the Portuguese retailer nothing more than a concatenation of individual sales of goods, governed by their general terms and conditions. Consequently, they argued that any dispute arising from the relationship should be subject to the jurisdiction clause identifying Belgium as the court with jurisdiction under those terms and conditions.

        Thus, a determination was needed on whether, under these facts, there was a valid prorogation of jurisdiction under Article 25, paragraph 1 of Regulation 1215/2012.

        The Court of Justice has long opined that if the jurisdiction clause is included in the general contract conditions drafted by one of the parties, the contract signed by the other party must contain an express reference to those general conditions in order to ensure the real consent thereto by the parties (judgement of 14 December 1976, Estasis Salotti di Colzani, case no. 24/76; judgement of 16 March 1999, Castelletti, case no. C-159/97; judgement of 7 July 2016, Höszig, case no. C-225/15). Moreover, to be valid, the clause must involve a particular legal relationship (judgement of 20 April 2016, Profit Investment SIM, case no. C-366/13).

        In the instant case, the referring court found it self-evident that the legal relationship at bar was a commercial concession agreement entered into for the purpose of distributing Saey products in Spain, a contract that was not evidenced in writing.

        From this perspective, it is clear that the general conditions contained in the Saey invoices could have no bearing on the commercial concession agreement: assuming Lusavouga’s consent had been proven, the selection of Belgium as the forum would have applied if anything to the individual sales agreements, but not to those duties arising from the separate distribution agreement.

        What, then, would be the court with jurisdiction for the duties arising from the commercial concession agreement?

        Absent any jurisdiction clause, the issue would be decided under Art. 7, point 1 of Regulation 1215/2012, under which it becomes imperative to establish whether a contract is for goods or for services.

        The “provision of services” has been defined by the Court of Justice as an activity, not mere omissions, undertaken in return for remuneration (judgement of 23 April 2009, Falco, case no. C-533/07).

        With the judgements in Corman Collins of 19 December 2013 (case no. C-9/12), and Granarolo of 14 July 2016 (case no. C-196/15), the Court held that in a typical distribution agreement, the dealer renders a service, in that they are involved in increasing the distribution of supplier’s product, and receives in consideration therefor a competitive advantage, access to advertising platforms, know-how, or payment facilities. In light of such elements, the contract relationship should be deemed one for services. If on the other hand the commercial relationship is limited to a concatenation of agreements, each for the purpose of a delivery and pickup of merchandise, then what we have is not a typical distribution agreement, and the contractual relationship shall be construed as one for the sale of goods.

        Once the contract has been categorised as one for services, one must then determine “the place where, under the contract, the services are provided”. The Court specifies that such location shall be understood as the member state of the place of the main provision of services, as it follows from the provisions of the contract  or – as in the case at issue – the actual performance of the same. Only where it is impossible to identify such location shall the domicile of the party rendering the service be used.

        From the referring court’s description of the contractual relationship, and from the Court of Justice’s understanding of the distributor’s performance of services, it would be logical to find that the principal location for performance of services was Spain, where Lusavouga “was involved in increasing the distribution of products” of Saey.

        It is clear that neither the manufacturer nor the distributor would ever have intended such a result, and they might have avoided it being chosen for them by reducing their agreement in writing, including a jurisdiction clause therein.

        By the same token, viewed from the outside, the Portuguese judges’ apparent conviction that the situation was one of an actual dealership contract would leave ample room for debate. After all, a number of elements would lead to the opposite conclusion. However, even in terms of that aspect, the absence of a written contract left room for interpretation that might lead to unforeseen – and perhaps rather risky – consequences.

        In conclusion, the wisdom of setting down the terms and conditions of a sales distribution agreement in writing appears clear. This is not only because one can avoid those ambiguities we have described above, but also because it specifies other important clauses stipulated by the parties that should not be left to chance: exclusivity of area, if any, or with respect to specific sales channels, the contract period and termination notice, any duties to promote the product, control over end-user personal data, and the possibility of, and methods for, any online sales of products.

        Christophe Hery

        Áreas de práctica

        • Agencia
        • Antitrust
        • Arbitraje
        • Contratos de distribución
        • e-commerce
        Contáctanos Christophe

        Contacta con Christophe





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          La redacción de la cláusula de mediación en el contrato de franquicia

          24 de mayo de 2018

          • España
          • Contratos de distribución
          • Franquicia

          On 1 January, the new Packaging Act (“Verpackungsgesetz”) will replace the existing Packaging Ordinance (“Verpackungsverordnung”). Non-compliance with the new rules may have very unpleasant consequences.

          For those who sell packaged goods to end consumers in Germany it is high noon: they have to adapt to the new packaging law, which comes into force on January 1, 2019.

          The main objective of the new law is that in the future all concerned parties will have to take responsibility and bear the costs of disposing their packaging. The legislator also wants to achieve the increase of the recycling rate of paper, plastic, metal or glass packaging, and to use as many readily recyclable materials as possible. Therefore, the fee that producers or distributors must pay for disposal will in future not only depend on the quantity and material type, but also more on the recyclability of the packaging.

          Who is affected by this law?

          Manufacturers, online dealers and distributors of packaged goods of all kinds.

          Affected are all so-called initial distributors of packaging, which typically end up at the private end consumer. These can be manufacturers, online dealers and distributors of packaged goods of all kinds, whether food, electrical appliances or furniture.

          All of them, if they place packaging on the market for the first time, must register with one of the dual systems already today and, depending on the quantity and material of the packaging waste, pay a participation fee to the German take-back system.

          It is new from next year on that they additionally have to register with the Central Agency Packaging Register and specify the amount of waste.

          This information will be publicly available. By doing so, the legislator wants to create transparency and ensure that all those who place «packaging» on the market fulfill their obligations.

          Also new is that the fees, which so far have been simply calculated according to quantity and type of material, should in future also depend on how well a material can be recycled.

          For example: Cardboard boxes, which usually consist of two-thirds of waste paper, are easily recyclable, as are aluminium cans, which can be reused to 100 percent. By contrast, the notorious coffee-to-go cups are not recyclable because they consist of a quasi-inseparable composite material.

          How exactly the gradations will look is not yet certain, as the dual systems still work on the implementation.

          Further innovations for beverage manufacturers and distributors

          The law contains several other changes that are particularly important for beverage manufacturers and distributors. The compulsory deposit for disposable containers will be extended to include a few types of beverages that were previously exempted, such as carbonated fruit and vegetable nectars. A new duty has been introduced for retailers, who must point out «with clearly visible signs» on disposable and reusable beverage packaging.As from 1st of January 2019 companies must also file the so-called Declaration of Compliance (“Vollstaendigkeitserklaerung”) with the Central Agency Packaging Register and not anymore with the respective local Chamber of Industry and Commerce.

          What is the Declaration of Compliance?

          A Declaration of Compliance is a verification concerning the volumes of sales packaging placed into the market by a manufacturer / distributor within one calendar year.

          The filing of the Declaration of Compliance, however, only affects larger manufacturers, since the de minimis limits are set quite high in this respect. For paper, cardboard or carton it is about 80 tons per year.

          Pre-registration is already possible as from September 2018. It is important to note, however, that every company involved in the system must perform the registration and data reporting «personally», meaning that this process may not be transferred to third parties.

          The respective database run by the Central Agency Packaging Register is called LUCID. Manufacturers, online dealers or initial distributors who preregister with LUCID will receive a provisional registration number, which will be sent to the Dual system with which they can sign a contract. There are currently nine companies offering this. Manufacturers who preregister in 2018 will automatically receive a registration confirmation from the Central Agency Packaging Register at the beginning of 2019. The registration including the indication of quantities is free and can be done online.

          The Central Agency Packaging Register is also responsible to monitor compliance with the regulations. However, at the end of the day, everyone can check the respective compliance as LUCID is a transparent register and open to everyone to search the register for specific manufacturers and brands.

          The law explains why this can have quite unpleasant consequences:

          In case the registration is omitted, there is automatically a ban on distribution of the packaging and there is a threat of fines to be imposed which may range up to 100.000 €! Due to the publicity of the register, agents not complying with the law may have to expect that their goods will be discontinued in the German trade.

          Still unclear issues

          The definition of packaging covered by this law is not quite clear. Transport packaging such as that used by a manufacturer for delivery to the dealer and disposed of there, for example, is not affected by the obligation to participate at the system and the new registration obligation. This packaging does not end up at the private end consumer. But what about wine boxes, for example? They are often only transport packaging, but some customers may take a whole box of their favorite wine with them. In addition, hotels and restaurants, such as those supplied by a retailer, are considered by law to be private end consumers.

          The author of this post is Olga Dimopoulou

          In a recent decision on the 24th of October 2018 (n°18-D-23), the French Competition Authority (Autorité de la Concurrence, aka AdlC) fined the Stihl company (leader in mechanized culture products) for his practices in his selective distribution network. Stihl managed to restrict the sale of its products by its authorized distributors on their own website and to prohibit them from marketing them on third-party platforms.

          The ruling is considered by the AdlC as having «vocation to clarify the framework applicable in France for the different sectors and products, beyond the sole sector of the mechanized culture».

          In this case the network implemented by the supplier was a selective distribution network. Therefore, AdlC’s position can only concern the implementation of a selective distribution network and is not applicable to an exclusive distribution network (see our Update Distribution/Competition, April 2018).

          1. The lawfulness of the selective distribution network

          The Authority follows the traditional analysis of validity of a selective distribution network. First, it highlights that selection of resellers was based on objective criteria such as qualitative nature, applied in a uniform manner and without any discrimination.

          Then, the Authority had to determine whether the qualitative criterion conditioning the lawfulness of the selective distribution system was fulfilled or not. The Authority has decided that the fact that products in question are of a delicate assembly and that some of them even present risks for safety of users, justifies setting up a network of selective distribution.

          1. The lawfulness of the ban on selling technical products on third-party platforms

          The decision of the AdlC was especially expected on this point because it had to take into account rulings rendered by the CJEU and then by the Paris Court of Appeal in the Coty cases ((CJUE 6/12/17, affaire 230/16; Cour d’appel de Paris, pôle 5, ch 4, 28 février 2018, n° 16/02263). The question was: the right of suppliers to prohibit their authorized distributors from distributing their products on third-party platforms is limited to luxury goods only (the Coty hypothesis) or could be extended to include others products? The hypothesis of this extension had already been addressed by other courts in Europe and also by the Advocate General before the CJEU (see our Update Distribution/Competition, December 2017) and then by the European Commission.

          In a nutshell the Authority extends the Coty case law to technical products whether they are dangerous or not.

          First of all, the Authority notes that «prohibition to sell on platforms contributes to preserving the safety of consumers and to guaranteeing the brand image and the quality of the products concerned».

          Then, the Authority checked whether this restriction did not go beyond what is necessary in regards to characteristics of products in question. It notes that in the case of third-party platforms, this restriction allows supplier to control that its distributors comply with requirements of distribution network.

          Finally, the AdlC checked whether this prohibition was not disproportionate, and in this case, noted that there is no disproportion in so far as distribution on third-party marketplaces is not a main marketing channel for mechanized culture products.

          This result (validation of the ban on the sale of products on third-party platforms) may allow many economic operators to believe legitimately that the scope of the Coty case law can be broad.

          1. Prohibition of restrictions on resale of products on distributors’ websites

          However the AdlC has refused to approve the clause restricting resale of products by distributors on their own websites.

          In this case, if customers of the distributors could place an order online, they had to, for products with a certain dangerous nature (such as chainsaw, pruner, brushcutter, etc.) either come to withdraw the product at a (physical) sell point owned by distributor or to be delivered by the distributor. Distributor had indeed underwritten a complete obligation to «put in hand» the machine, including the oral communication of usage instructions and a demonstration.

          The AdlC decided that this obligation to put in hand was actually to cancel advantages attached to Internet selling and thus to prohibit purely and simply Internet selling. According to the Authority, this restriction went beyond what is necessary to preserve consumer’s health.

          The AdlC had to determine whether this restriction was a restriction by object or effect. According to the Authority, the restriction at stake reduced the ability of distributors to sell products outside their usual customers catchment area, and as such should be characterized as a competitive restriction by object.

          On possible exemptions issues, the Authority first rejects the possibility of category exemption within the meaning of the EU Block Exemption Regulation No 330/2010, the anti-competitive practice being comparable to a restriction characterized by passive sales within the meaning of Article 4, para. (c). Possibility of an individual exemption was also rejected by the Authority after examining any efficiency gains related to this «put in hand» obligation.

          The Authority could have taken advantage of this particular case, to refine the Pierre Fabre / Bang & Olufsen case law and validate and update sales restrictions on the Internet when the proper nature or quality of products justifies such a restriction.

          In summary, the marketing of products involving high technicality or which tend to be dangerous by using it:

          • justifies the implementation of a selective distribution network;
          • may be prohibited on third party platforms (if the selective distribution network is considered lawful);
          • could not be restricted on the websites of authorized distributors of a lawful selective network, for lack of «efficiency gain» in favor of consumers, according to a very (too?) strict position of the AdlC.

          On this last point, it will probably be necessary to wait for a clearer solution given by the Court of Appeal of Paris (in front of which a recourse is now pending) or the Court of Cassation.

          Very frequently, different business settings present the opportunity to sign a Non-Disclosure Agreement (“NDA”) and a Memorandum of Understanding (“MoU”) or Letter of Intent (“LoI”), so much so that these three acronyms – NDA, MoU and Lol – are now commonly used, particularly throughout international negotiations.

          However, often times, these contracts are used in an improper way and with different purposes than those for which they were established in international commercial praxis, with the result that they are either not useful because they do not effectively protect the parties’ interests, or are counterproductive.

          We shall start by taking a look at the characteristics of the Non-Disclosure Agreement – NDA – and how it should be used.

          What is a NDA?

          The NDA is an agreement whose function is to protect the confidential information that the parties (generally identified, respectively as the “Disclosing Party” and the “Receiving Party”) intend sharing, in different possible scenarios: forwarding of information for a preliminary due diligence relating to an investment, the evaluation of commercial data for a distribution contract, technical specifications related to a certain product that is subject of transfer of technology etc.

          The first step of the negotiations, in fact, often requires that different types of information whether technical, financial or commercial, are made available by one or both parties, and the need for this information to remain confidential (hereinafter the “Confidential Information”) during and after the conclusion of the negotiations.

          NDA – Who are the parties?

          Right from the recitals of the agreement, it is very important to correctly identify the parties obliged to safeguard the information and maintain its confidentiality, especially when group companies are involved, and where the interlocutors may be many and located in different countries. In such cases, it is advisable to oblige the Receiving Party to guarantee confidentiality by all the companies by means of a specific clause. It is also important that the agreement accurately indicates the people belonging to the Receiving Party’s organization (such as: employees, technical consultants, experts, collaborators, etc.) who have a right to access the information, if possible by signing a confidentiality agreement by all the people involved.

          NDA – What is Confidential Information?

          The use of recycled NDA templates, found on forms or proposed by the counterparty is certainly not a recommended practice, but unfortunately one that is very widespread. These templates are very often generic and include broad definitions of Confidential Information as well as very detailed lists which actually include all contents of a business activity, often including areas that are not applicable to the object of the activity being negotiated, or information that is actually not reserved.

          The problem regarding these templates is that it is difficult, ex post, to verify whether certain information  would have been included in the Confidential Information, for example either because it would be difficult to determine whether the Receiving Party would have already been in possession before the signing of the NDA, or because the information would not have been expressly mentioned in a clause that contains a very detailed list, but which does not include the individual piece of information that is of interest, or lastly because after the signing of the NDA, the Confidential Information would have been shared using non-secure and non-traceable procedures (for example as an email attachment).

          The best way to proceed is that of identifying in a very specific way only the information that needs to be shared, listing the documents in an attachment to the NDA, thereafter making them available in a format that leaves no doubt regarding their confidentiality, for example by marking them with a watermark or stamp “Confidential under NDA”. Furthermore, a good praxis is to provide access to the Confidential Information only through a secure way (such as a reserved cloud , accessible only through an individual user name and password that is given to authorized people).

          NDA – Prohibition from using the Confidential Information

          Often times through the standard NDA templates, the Receiving Party is only obliged to maintain the Confidential Information reserved, without being prohibited from its use which – especially in cases of competitor companies – may be more dangerous than divulging the information: imagine technology development or patents based on data acquired, or the use of lists of clients or other commercial information. To highlight and strengthen this obligation it would be more correct to name the document Non-Disclosure and Non-Use Agreement (“NDNUA”).

          NDA – Duration

          The function of the NDA is to protect the Confidential Information for the entire time during which it needs to be shared between the Parties. It is therefore important to clearly indicate the last moment the information will be used and – in the event that the Receiving Party is in possession of a copy of the Confidential Information – ensure that the Receiving Party returns or destroys the documents and shall maintain the Information reserved and shall refrain from using the Information for a few months (better years) following the termination of the NDA.

          Breach of the NDA

          Attempting to quantify the damages resulting from a breach of the confidentiality clause is generally very complex: it may therefore be useful to provide for a penalty clause, that establishes a certain amount for the damage deriving from a contractual non-fulfilment. To this effect it is important to consider that the estimate of the penalty shall be reasonable in relation to the damage assumed to derive from the breach of confidentiality, and that different types of penalties can be established according to different cases of non-fulfilment (for example, registration or counterfeit of a patent through the use of shared technical information, or contact with certain business partners).

          There is also another advantage inserting a penalty clause in the NDA: if during the negotiations the Receiving Party objects to the clause or requests it to be reduced, it may indicate a mental reservation of default, and in any case is symptomatic of a fear of having to pay this amount, which would have no reason to exist if the party intended abiding strictly to the contractual obligations.

          NDA – Litigation, jurisdiction and applicable law

          Even in this case there is an unfortunate practice, which is that of relegating this type of clause to the end of the agreement (concerning the so-called midnight clauses, to this effect you may refer to this post on  legalmondo) and thus not dedicate enough attention to its contents, which may lead to adopting clauses that are completely wrong (or worse still, null).

          In reality this is a very important provision, which leads to ensuring contractual enforcement and/or obtaining a judicial decision that may be executed in a rapid and effective way. There is no solution that applies to all cases and the individual  negotiation need to be considered: for example in an NDA with a Chinese counterpart it may be counterproductive to choose the Italian jurisdiction and apply Italian law, given that in the event of non-fulfilment it is usually necessary to take legal action and enforce the judicial or arbitral decision in China (even with interim – urgent measures). It would therefore be more opportune, to draft an NDA with an English/Chinese bilingual text and provide for an arbitration in China, applying Chinese law.

          NDA – Conclusion

          The NDA is a fundamental tool to protect confidential information, and this can be achieved only if it is well drafted, taking into consideration the specific case at hand: it is advisable to refrain from the “do-it-yourself” and seek legal advice from a lawyer who knows how to draw up an NDA bearing in mind all the characteristics of this type of contract  (type of negotiation, information to be shared, location of the parties and countries where the NDA will be executed).

          Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

          It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

          And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

          The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

          The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

          1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

          Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

          1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
          2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
          3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
          4. Costs are reasonable and known in advance.
          5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

          To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project

          El Código Civil y Comercial de la República Argentina (el “Código”) no contiene artículos específicos para los contratos de distribución. Por ello, al contrato de distribución se lo considera como un “contrato innominado”, el cual contiene, entre otras cosas, elementos de los contratos de compraventa, agencia y mandato. Por lo tanto, si el contrato de distribución no posee una regla específica para un caso particular, las partes deben aplicar por analogía los artículos de estos tres tipos de contratos (compraventa, agencia y mandato) como reglas standard hasta el punto de que sean aplicables en casa caso. Asimismo, el Artículo 1511 del Código establece que las reglas del Capítulo 18 (Contratos de Concesión) aplicarán para los Contratos de Distribución cuando corresponda.

          Forma

          El Código no requiere de ninguna forma en particular para celebrar este tipo de contratos. Sin embargo, comunmente estos contratos se realizan por escrito.

          Cláusulas Importantes

          Para todas las partes:

          1. a) Fuerza Mayor: considerando que en la Argentina tiende a existir un ambiente inestable para los negocios debido a razones políticas, las partes deben considerar la posibilidad de incluir en los contratos cláusulas de “cambios de legislación” o “acciones de gobierno” dentro de la definición de fuerza mayor.
          2. b) Seguro de los productos. Es importante que en caso de suceder algún siniestro con los productos, los mismos estén cubiertos para no perder todo el dinero de los mismos.
          3. c) Registración del producto.

          Para el proveedor:

          1. a) Pago (si es internacional, sin impuestos, cláusulas para recibir el monto total sin deducciones o retenciones).
          2. b) Moneda (en virtud de la inestabilidad del Peso Argentino, es importante establecer cláusulas de reajuste de precio o establecer el precio en Dólares Estadounidenses).
          3. c) Recall del Producto.
          4. d) Tiempo de entrega.
          5. e) Retrasos.
          6. f) Condiciones del stock.

          Para el distribuidor:

          1. a) Retornos.
          2. b) Compensación de clientela.
          3. c) Producto defectuoso.
          4. d) Muestras del producto.

          Incoterms

          En los contratos de distribución nacionales no es usual utilizar Incoterms. Sin embargo, en los contratos de distribución internacionales, es común utilizar los siguientes Incoterms:

          Para el transporte aereo: FCA (Free Carrier); para el transporte por barco: FOB(Free On Board).

          Responsabilidad sobre el Producto

          Conforme la Ley Nº 24.240 de Defensa del Consumidor, el consumidor tiene un plazo de 3 años para realizar un reclamo contra el distribudor y/o el proveedor, mientras que para otras partes de la cadena de comercialización, los cuales tiene una relación contractual directa con el distribuidor y/o proveedor (ej: minoristas que adquirieron los productos del distribuidor y/o un subcontratista del distribuidor), el plazo es de 10 años. En cualquier caso, los partes deben estar interesados en la posibilidad de establecer que el plazo de 3 años comience a contarse desde la fecha de vencimiento de los productos en lugar de la fecha de terminación del contrato (ej: un producto puede ser guardado y no vendido por un tiempo y por ende el plazo de 3 años retrasarse).

          Propiedad Intelectual

          El proveedor debe realizar y renovar la registración de las marcas de los productos en Argentina. En función de ello, es importante incluir una cláusula en el contrato que establezca que las marcas son de propiedad del proveedor y que el distribuidor únicamente puede usarlas en la medida que tenga autorización por parte del proveedor mientras se encuentre vigente el contrato. Asimismo, el distribuidor debe proteger las marcas del proveedor.

          Resolución

          Las Partes pueden acordar libremente como podrá resolverse el contrato. En caso de existir un cláusula de resolución sin causa, la misma debe tener un preaviso razonable para que la otra parte pueda conseguir otro distribuidor o enfrentar la pérdida del cliente, dependiendo quien ejerza la opción.

          Ley Aplicable y Jurisdicción

          Las partes pueden pactar la ley que consideren mejor para resolver cualqueir asunto del contrato. Asimismo, las partes también podrán elegir libremente que tribunal o arbitraje elegir dentro del país o en el extranjero.

          El autor de este post es Tomás García Navarro.

          President Erdogan made a presidential decree that mandatorily requires use of Turkish lira for transactions concluded between parties resident in Turkey. The Decree amending the Decree on Protecting the value of Turkish Lira, (The Decree) is published in the Official Gazette and came into force on 13th September 2018.

          The Decree orders use of Turkish Lira for purchase and sale of all kinds of goods, commodities, services and real estate. All kinds of lease and rental of vehicles and all kinds of goods and real estate must also be made by using Turkish Liras. The decree also stipulates that no reference to currency exchange tying a contract payment or value to foreign currency can be made and the all contracts between Turkish residents even if foreign owned must be based on Turkish Liras.

          Let’s see the changes introduced by the regulation point by point.

          No Use of Foreign Currency in domestic Contracts

          New currency policy states that all payments related to contracts between local parties i.e. Turkish Residents whether legal persons or real persons must be made in Turkish liras.

          Accordingly all real estate transactions must be made in Turkish liras and no reference can be made to foreign currencies.

          All Contracts Must be Amended within 30 days

          The Decree establishes also that all contracts between Turkish residents made before 13th September 2018 must be amended and the payments must be converted into Turkish liras from any foreign currency within 30 days from the publish date of The Decree (13th September 2018): this shall mean that all contracts based on foreign currencies must be amended within 14th October 2018.

          There is no reference to a currency exchange rate when amending contracts into Turkish Liras. The parties are free to agree on any currency rate when amending however this cannot be stipulated in the contract but only for negotiation purposed when drafting the amendment.

          The governmental projects which have been signed earlier should be coordinated with the related authority and adaption should be made in line with the new currency regime.

          Import and Export of Goods and Services

          The new decree does not impact an export or import relation, as long as one of the parties is not Turkish resident. However one must note that The Decree may have an impact on Turkish based subsidiaries of multinational companies trading with foreign currency.

          There is no limitation in bringing foreign currency into country.

          Sanctions

          New foreign currency policy does not address any criminal or administrative sanctions. New regulations should be expected to implement the practice of The Decree. Needless to say, if one of the parties of an existing contract based on foreign currency will be eager to take the matter to the civil courts if no amendment is made within 30 days and easily obtain a court decision for amendment.

          Conclusion

          This move is considered as one of the steps of measure step to support the ailing local currency.

          Slipping Turkish Liras has been an on-going concern for Turkey in last 6 months. The sudden drop of Turkish Liras exchange rate urged the government to find a quick cure to increase the value of Turkish liras or at least to maintain the status.

          Those days, some rough policies have been adopted by governments to safeguard the fragile Turkish Lira. The measures taken indeed prevented Turkish economy to accelerate and take off. With the new liberal look after 1983 elections many of these hard measures were lifted and the law on Protection of Turkish Liras was eased. The era before 1980s when there were hard policies applied to protect Turkish Lira was in a different world than today.

          The latest measure may or may not address an improvement but it is a fact that many foreign investors or local investors funded by foreign institutions will have to struggle due to the new regulations pushing them to amend their contracts into Turkish Liras from foreign currencies.

          Not what you would expect 

          When can you terminate, how should you terminate, and how much are you exposed?!

          The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.

          This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.

          However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.

          In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.

          Nevertheless, often the international corporation decides for various reasons (such as establishing an «in-house» operation» in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.

          What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?

          Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.

          Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.

          As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.

          The truth is the reasonability of the due notice varies from case to case!

          However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to «justify» avoiding a due notice period or adequate compensation.

          In this respect, in many cases simple «non-satisfaction» was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.

          There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.

          Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.

          Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.

          The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.

          In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.

          It is often the case – in practice – that an ongoing commercial relationship builds slowly over time through a series of sales agreements, without the parties ever signing an actual distribution agreement to set down their respective rights and responsibilities.

          At first blush this might appear to be a good thing: one can sidestep being bound, especially long-term, to the other party. But on closer scrutiny the solution becomes problematic, especially for anyone operating internationally.

          One of the key issues that arises when an international contractual arrangement is not in writing, is identifying the court with jurisdiction over any dispute arising therefrom. In the European Union, the issue is resolved by the provisions of Regulation 1215/2012 (“Brussels I recast”). Pursuant to Article 7 of the Regulation, as an alternative to the defendant’s courts, jurisdiction in a contractual dispute may lie with the court in the place of performance of the obligation in question. Next to this general rule are two criteria to identify the “place of performance”, differentiated according to the type of contract at issue. For a contract for goods, it is the place of delivery for the goods; in a contract for services, it is the place where the services are provided.   

          Thus, to identify the court with jurisdiction, it is crucial that a contract fall under one of these categories: goods or services.

          No doubt this distinction is quite simple in many circumstances. In the case of a distribution agreement, or of a commercial concession agreement, the issue may become thorny.

          The European Court of Justice has analysed this issue on a number of occasions, most recently in their judgement of 8 March 2018 (Case no. C-64/17) following the request for a preliminary ruling from a Portuguese Court of Appeal. The parties to the action were a Portuguese distributor, a company called Lusavouga, and a Belgian company called Saey Home & Garden, that produced articles for the home and garden, including a line of products branded “Barbecook”.

          Following Saey’s decision to break off the commercial relationship – notice of which was sent in an email dated 17 July 2014 – Lusavouga brought action in Portugal seeking compensation for the unexpected termination of the agreement, and goodwill indemnity. Saey raised a plea of lack of jurisdiction of the Portuguese court, citing their general conditions of sale (mentioned in their invoices) which required that a Court in Belgium be competent for dispute resolution.

          The facts thus presented two issues to be resolved in light of the Brussels I recast Regulation: deciding whether a jurisdiction clause in a vendor’s general terms and conditions pursuant to Art. 25 of the Regulation shall apply, and, if not, choosing the court with jurisdiction under Art. 7 of the Regulation.

          Shall a jurisdiction clause contained within a vendor’s general terms and conditions apply to a distribution relationship?

          The supplier company apparently considered their course of dealing with the Portuguese retailer nothing more than a concatenation of individual sales of goods, governed by their general terms and conditions. Consequently, they argued that any dispute arising from the relationship should be subject to the jurisdiction clause identifying Belgium as the court with jurisdiction under those terms and conditions.

          Thus, a determination was needed on whether, under these facts, there was a valid prorogation of jurisdiction under Article 25, paragraph 1 of Regulation 1215/2012.

          The Court of Justice has long opined that if the jurisdiction clause is included in the general contract conditions drafted by one of the parties, the contract signed by the other party must contain an express reference to those general conditions in order to ensure the real consent thereto by the parties (judgement of 14 December 1976, Estasis Salotti di Colzani, case no. 24/76; judgement of 16 March 1999, Castelletti, case no. C-159/97; judgement of 7 July 2016, Höszig, case no. C-225/15). Moreover, to be valid, the clause must involve a particular legal relationship (judgement of 20 April 2016, Profit Investment SIM, case no. C-366/13).

          In the instant case, the referring court found it self-evident that the legal relationship at bar was a commercial concession agreement entered into for the purpose of distributing Saey products in Spain, a contract that was not evidenced in writing.

          From this perspective, it is clear that the general conditions contained in the Saey invoices could have no bearing on the commercial concession agreement: assuming Lusavouga’s consent had been proven, the selection of Belgium as the forum would have applied if anything to the individual sales agreements, but not to those duties arising from the separate distribution agreement.

          What, then, would be the court with jurisdiction for the duties arising from the commercial concession agreement?

          Absent any jurisdiction clause, the issue would be decided under Art. 7, point 1 of Regulation 1215/2012, under which it becomes imperative to establish whether a contract is for goods or for services.

          The “provision of services” has been defined by the Court of Justice as an activity, not mere omissions, undertaken in return for remuneration (judgement of 23 April 2009, Falco, case no. C-533/07).

          With the judgements in Corman Collins of 19 December 2013 (case no. C-9/12), and Granarolo of 14 July 2016 (case no. C-196/15), the Court held that in a typical distribution agreement, the dealer renders a service, in that they are involved in increasing the distribution of supplier’s product, and receives in consideration therefor a competitive advantage, access to advertising platforms, know-how, or payment facilities. In light of such elements, the contract relationship should be deemed one for services. If on the other hand the commercial relationship is limited to a concatenation of agreements, each for the purpose of a delivery and pickup of merchandise, then what we have is not a typical distribution agreement, and the contractual relationship shall be construed as one for the sale of goods.

          Once the contract has been categorised as one for services, one must then determine “the place where, under the contract, the services are provided”. The Court specifies that such location shall be understood as the member state of the place of the main provision of services, as it follows from the provisions of the contract  or – as in the case at issue – the actual performance of the same. Only where it is impossible to identify such location shall the domicile of the party rendering the service be used.

          From the referring court’s description of the contractual relationship, and from the Court of Justice’s understanding of the distributor’s performance of services, it would be logical to find that the principal location for performance of services was Spain, where Lusavouga “was involved in increasing the distribution of products” of Saey.

          It is clear that neither the manufacturer nor the distributor would ever have intended such a result, and they might have avoided it being chosen for them by reducing their agreement in writing, including a jurisdiction clause therein.

          By the same token, viewed from the outside, the Portuguese judges’ apparent conviction that the situation was one of an actual dealership contract would leave ample room for debate. After all, a number of elements would lead to the opposite conclusion. However, even in terms of that aspect, the absence of a written contract left room for interpretation that might lead to unforeseen – and perhaps rather risky – consequences.

          In conclusion, the wisdom of setting down the terms and conditions of a sales distribution agreement in writing appears clear. This is not only because one can avoid those ambiguities we have described above, but also because it specifies other important clauses stipulated by the parties that should not be left to chance: exclusivity of area, if any, or with respect to specific sales channels, the contract period and termination notice, any duties to promote the product, control over end-user personal data, and the possibility of, and methods for, any online sales of products.

          Ignacio Alonso

          Áreas de práctica

          • Agencia
          • Derecho Societario
          • Contratos de distribución
          • Franquicia
          Contáctanos Ignacio

          Contacta con Ignacio





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            Germany – Termination of distribution agreements: Can dealers claim delivery anyway?

            24 de mayo de 2018

            • Alemania
            • Contratos de distribución

            On 1 January, the new Packaging Act (“Verpackungsgesetz”) will replace the existing Packaging Ordinance (“Verpackungsverordnung”). Non-compliance with the new rules may have very unpleasant consequences.

            For those who sell packaged goods to end consumers in Germany it is high noon: they have to adapt to the new packaging law, which comes into force on January 1, 2019.

            The main objective of the new law is that in the future all concerned parties will have to take responsibility and bear the costs of disposing their packaging. The legislator also wants to achieve the increase of the recycling rate of paper, plastic, metal or glass packaging, and to use as many readily recyclable materials as possible. Therefore, the fee that producers or distributors must pay for disposal will in future not only depend on the quantity and material type, but also more on the recyclability of the packaging.

            Who is affected by this law?

            Manufacturers, online dealers and distributors of packaged goods of all kinds.

            Affected are all so-called initial distributors of packaging, which typically end up at the private end consumer. These can be manufacturers, online dealers and distributors of packaged goods of all kinds, whether food, electrical appliances or furniture.

            All of them, if they place packaging on the market for the first time, must register with one of the dual systems already today and, depending on the quantity and material of the packaging waste, pay a participation fee to the German take-back system.

            It is new from next year on that they additionally have to register with the Central Agency Packaging Register and specify the amount of waste.

            This information will be publicly available. By doing so, the legislator wants to create transparency and ensure that all those who place «packaging» on the market fulfill their obligations.

            Also new is that the fees, which so far have been simply calculated according to quantity and type of material, should in future also depend on how well a material can be recycled.

            For example: Cardboard boxes, which usually consist of two-thirds of waste paper, are easily recyclable, as are aluminium cans, which can be reused to 100 percent. By contrast, the notorious coffee-to-go cups are not recyclable because they consist of a quasi-inseparable composite material.

            How exactly the gradations will look is not yet certain, as the dual systems still work on the implementation.

            Further innovations for beverage manufacturers and distributors

            The law contains several other changes that are particularly important for beverage manufacturers and distributors. The compulsory deposit for disposable containers will be extended to include a few types of beverages that were previously exempted, such as carbonated fruit and vegetable nectars. A new duty has been introduced for retailers, who must point out «with clearly visible signs» on disposable and reusable beverage packaging.As from 1st of January 2019 companies must also file the so-called Declaration of Compliance (“Vollstaendigkeitserklaerung”) with the Central Agency Packaging Register and not anymore with the respective local Chamber of Industry and Commerce.

            What is the Declaration of Compliance?

            A Declaration of Compliance is a verification concerning the volumes of sales packaging placed into the market by a manufacturer / distributor within one calendar year.

            The filing of the Declaration of Compliance, however, only affects larger manufacturers, since the de minimis limits are set quite high in this respect. For paper, cardboard or carton it is about 80 tons per year.

            Pre-registration is already possible as from September 2018. It is important to note, however, that every company involved in the system must perform the registration and data reporting «personally», meaning that this process may not be transferred to third parties.

            The respective database run by the Central Agency Packaging Register is called LUCID. Manufacturers, online dealers or initial distributors who preregister with LUCID will receive a provisional registration number, which will be sent to the Dual system with which they can sign a contract. There are currently nine companies offering this. Manufacturers who preregister in 2018 will automatically receive a registration confirmation from the Central Agency Packaging Register at the beginning of 2019. The registration including the indication of quantities is free and can be done online.

            The Central Agency Packaging Register is also responsible to monitor compliance with the regulations. However, at the end of the day, everyone can check the respective compliance as LUCID is a transparent register and open to everyone to search the register for specific manufacturers and brands.

            The law explains why this can have quite unpleasant consequences:

            In case the registration is omitted, there is automatically a ban on distribution of the packaging and there is a threat of fines to be imposed which may range up to 100.000 €! Due to the publicity of the register, agents not complying with the law may have to expect that their goods will be discontinued in the German trade.

            Still unclear issues

            The definition of packaging covered by this law is not quite clear. Transport packaging such as that used by a manufacturer for delivery to the dealer and disposed of there, for example, is not affected by the obligation to participate at the system and the new registration obligation. This packaging does not end up at the private end consumer. But what about wine boxes, for example? They are often only transport packaging, but some customers may take a whole box of their favorite wine with them. In addition, hotels and restaurants, such as those supplied by a retailer, are considered by law to be private end consumers.

            The author of this post is Olga Dimopoulou

            In a recent decision on the 24th of October 2018 (n°18-D-23), the French Competition Authority (Autorité de la Concurrence, aka AdlC) fined the Stihl company (leader in mechanized culture products) for his practices in his selective distribution network. Stihl managed to restrict the sale of its products by its authorized distributors on their own website and to prohibit them from marketing them on third-party platforms.

            The ruling is considered by the AdlC as having «vocation to clarify the framework applicable in France for the different sectors and products, beyond the sole sector of the mechanized culture».

            In this case the network implemented by the supplier was a selective distribution network. Therefore, AdlC’s position can only concern the implementation of a selective distribution network and is not applicable to an exclusive distribution network (see our Update Distribution/Competition, April 2018).

            1. The lawfulness of the selective distribution network

            The Authority follows the traditional analysis of validity of a selective distribution network. First, it highlights that selection of resellers was based on objective criteria such as qualitative nature, applied in a uniform manner and without any discrimination.

            Then, the Authority had to determine whether the qualitative criterion conditioning the lawfulness of the selective distribution system was fulfilled or not. The Authority has decided that the fact that products in question are of a delicate assembly and that some of them even present risks for safety of users, justifies setting up a network of selective distribution.

            1. The lawfulness of the ban on selling technical products on third-party platforms

            The decision of the AdlC was especially expected on this point because it had to take into account rulings rendered by the CJEU and then by the Paris Court of Appeal in the Coty cases ((CJUE 6/12/17, affaire 230/16; Cour d’appel de Paris, pôle 5, ch 4, 28 février 2018, n° 16/02263). The question was: the right of suppliers to prohibit their authorized distributors from distributing their products on third-party platforms is limited to luxury goods only (the Coty hypothesis) or could be extended to include others products? The hypothesis of this extension had already been addressed by other courts in Europe and also by the Advocate General before the CJEU (see our Update Distribution/Competition, December 2017) and then by the European Commission.

            In a nutshell the Authority extends the Coty case law to technical products whether they are dangerous or not.

            First of all, the Authority notes that «prohibition to sell on platforms contributes to preserving the safety of consumers and to guaranteeing the brand image and the quality of the products concerned».

            Then, the Authority checked whether this restriction did not go beyond what is necessary in regards to characteristics of products in question. It notes that in the case of third-party platforms, this restriction allows supplier to control that its distributors comply with requirements of distribution network.

            Finally, the AdlC checked whether this prohibition was not disproportionate, and in this case, noted that there is no disproportion in so far as distribution on third-party marketplaces is not a main marketing channel for mechanized culture products.

            This result (validation of the ban on the sale of products on third-party platforms) may allow many economic operators to believe legitimately that the scope of the Coty case law can be broad.

            1. Prohibition of restrictions on resale of products on distributors’ websites

            However the AdlC has refused to approve the clause restricting resale of products by distributors on their own websites.

            In this case, if customers of the distributors could place an order online, they had to, for products with a certain dangerous nature (such as chainsaw, pruner, brushcutter, etc.) either come to withdraw the product at a (physical) sell point owned by distributor or to be delivered by the distributor. Distributor had indeed underwritten a complete obligation to «put in hand» the machine, including the oral communication of usage instructions and a demonstration.

            The AdlC decided that this obligation to put in hand was actually to cancel advantages attached to Internet selling and thus to prohibit purely and simply Internet selling. According to the Authority, this restriction went beyond what is necessary to preserve consumer’s health.

            The AdlC had to determine whether this restriction was a restriction by object or effect. According to the Authority, the restriction at stake reduced the ability of distributors to sell products outside their usual customers catchment area, and as such should be characterized as a competitive restriction by object.

            On possible exemptions issues, the Authority first rejects the possibility of category exemption within the meaning of the EU Block Exemption Regulation No 330/2010, the anti-competitive practice being comparable to a restriction characterized by passive sales within the meaning of Article 4, para. (c). Possibility of an individual exemption was also rejected by the Authority after examining any efficiency gains related to this «put in hand» obligation.

            The Authority could have taken advantage of this particular case, to refine the Pierre Fabre / Bang & Olufsen case law and validate and update sales restrictions on the Internet when the proper nature or quality of products justifies such a restriction.

            In summary, the marketing of products involving high technicality or which tend to be dangerous by using it:

            • justifies the implementation of a selective distribution network;
            • may be prohibited on third party platforms (if the selective distribution network is considered lawful);
            • could not be restricted on the websites of authorized distributors of a lawful selective network, for lack of «efficiency gain» in favor of consumers, according to a very (too?) strict position of the AdlC.

            On this last point, it will probably be necessary to wait for a clearer solution given by the Court of Appeal of Paris (in front of which a recourse is now pending) or the Court of Cassation.

            Very frequently, different business settings present the opportunity to sign a Non-Disclosure Agreement (“NDA”) and a Memorandum of Understanding (“MoU”) or Letter of Intent (“LoI”), so much so that these three acronyms – NDA, MoU and Lol – are now commonly used, particularly throughout international negotiations.

            However, often times, these contracts are used in an improper way and with different purposes than those for which they were established in international commercial praxis, with the result that they are either not useful because they do not effectively protect the parties’ interests, or are counterproductive.

            We shall start by taking a look at the characteristics of the Non-Disclosure Agreement – NDA – and how it should be used.

            What is a NDA?

            The NDA is an agreement whose function is to protect the confidential information that the parties (generally identified, respectively as the “Disclosing Party” and the “Receiving Party”) intend sharing, in different possible scenarios: forwarding of information for a preliminary due diligence relating to an investment, the evaluation of commercial data for a distribution contract, technical specifications related to a certain product that is subject of transfer of technology etc.

            The first step of the negotiations, in fact, often requires that different types of information whether technical, financial or commercial, are made available by one or both parties, and the need for this information to remain confidential (hereinafter the “Confidential Information”) during and after the conclusion of the negotiations.

            NDA – Who are the parties?

            Right from the recitals of the agreement, it is very important to correctly identify the parties obliged to safeguard the information and maintain its confidentiality, especially when group companies are involved, and where the interlocutors may be many and located in different countries. In such cases, it is advisable to oblige the Receiving Party to guarantee confidentiality by all the companies by means of a specific clause. It is also important that the agreement accurately indicates the people belonging to the Receiving Party’s organization (such as: employees, technical consultants, experts, collaborators, etc.) who have a right to access the information, if possible by signing a confidentiality agreement by all the people involved.

            NDA – What is Confidential Information?

            The use of recycled NDA templates, found on forms or proposed by the counterparty is certainly not a recommended practice, but unfortunately one that is very widespread. These templates are very often generic and include broad definitions of Confidential Information as well as very detailed lists which actually include all contents of a business activity, often including areas that are not applicable to the object of the activity being negotiated, or information that is actually not reserved.

            The problem regarding these templates is that it is difficult, ex post, to verify whether certain information  would have been included in the Confidential Information, for example either because it would be difficult to determine whether the Receiving Party would have already been in possession before the signing of the NDA, or because the information would not have been expressly mentioned in a clause that contains a very detailed list, but which does not include the individual piece of information that is of interest, or lastly because after the signing of the NDA, the Confidential Information would have been shared using non-secure and non-traceable procedures (for example as an email attachment).

            The best way to proceed is that of identifying in a very specific way only the information that needs to be shared, listing the documents in an attachment to the NDA, thereafter making them available in a format that leaves no doubt regarding their confidentiality, for example by marking them with a watermark or stamp “Confidential under NDA”. Furthermore, a good praxis is to provide access to the Confidential Information only through a secure way (such as a reserved cloud , accessible only through an individual user name and password that is given to authorized people).

            NDA – Prohibition from using the Confidential Information

            Often times through the standard NDA templates, the Receiving Party is only obliged to maintain the Confidential Information reserved, without being prohibited from its use which – especially in cases of competitor companies – may be more dangerous than divulging the information: imagine technology development or patents based on data acquired, or the use of lists of clients or other commercial information. To highlight and strengthen this obligation it would be more correct to name the document Non-Disclosure and Non-Use Agreement (“NDNUA”).

            NDA – Duration

            The function of the NDA is to protect the Confidential Information for the entire time during which it needs to be shared between the Parties. It is therefore important to clearly indicate the last moment the information will be used and – in the event that the Receiving Party is in possession of a copy of the Confidential Information – ensure that the Receiving Party returns or destroys the documents and shall maintain the Information reserved and shall refrain from using the Information for a few months (better years) following the termination of the NDA.

            Breach of the NDA

            Attempting to quantify the damages resulting from a breach of the confidentiality clause is generally very complex: it may therefore be useful to provide for a penalty clause, that establishes a certain amount for the damage deriving from a contractual non-fulfilment. To this effect it is important to consider that the estimate of the penalty shall be reasonable in relation to the damage assumed to derive from the breach of confidentiality, and that different types of penalties can be established according to different cases of non-fulfilment (for example, registration or counterfeit of a patent through the use of shared technical information, or contact with certain business partners).

            There is also another advantage inserting a penalty clause in the NDA: if during the negotiations the Receiving Party objects to the clause or requests it to be reduced, it may indicate a mental reservation of default, and in any case is symptomatic of a fear of having to pay this amount, which would have no reason to exist if the party intended abiding strictly to the contractual obligations.

            NDA – Litigation, jurisdiction and applicable law

            Even in this case there is an unfortunate practice, which is that of relegating this type of clause to the end of the agreement (concerning the so-called midnight clauses, to this effect you may refer to this post on  legalmondo) and thus not dedicate enough attention to its contents, which may lead to adopting clauses that are completely wrong (or worse still, null).

            In reality this is a very important provision, which leads to ensuring contractual enforcement and/or obtaining a judicial decision that may be executed in a rapid and effective way. There is no solution that applies to all cases and the individual  negotiation need to be considered: for example in an NDA with a Chinese counterpart it may be counterproductive to choose the Italian jurisdiction and apply Italian law, given that in the event of non-fulfilment it is usually necessary to take legal action and enforce the judicial or arbitral decision in China (even with interim – urgent measures). It would therefore be more opportune, to draft an NDA with an English/Chinese bilingual text and provide for an arbitration in China, applying Chinese law.

            NDA – Conclusion

            The NDA is a fundamental tool to protect confidential information, and this can be achieved only if it is well drafted, taking into consideration the specific case at hand: it is advisable to refrain from the “do-it-yourself” and seek legal advice from a lawyer who knows how to draw up an NDA bearing in mind all the characteristics of this type of contract  (type of negotiation, information to be shared, location of the parties and countries where the NDA will be executed).

            Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

            It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

            And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

            The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

            The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

            1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

            Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

            1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
            2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
            3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
            4. Costs are reasonable and known in advance.
            5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

            To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project

            El Código Civil y Comercial de la República Argentina (el “Código”) no contiene artículos específicos para los contratos de distribución. Por ello, al contrato de distribución se lo considera como un “contrato innominado”, el cual contiene, entre otras cosas, elementos de los contratos de compraventa, agencia y mandato. Por lo tanto, si el contrato de distribución no posee una regla específica para un caso particular, las partes deben aplicar por analogía los artículos de estos tres tipos de contratos (compraventa, agencia y mandato) como reglas standard hasta el punto de que sean aplicables en casa caso. Asimismo, el Artículo 1511 del Código establece que las reglas del Capítulo 18 (Contratos de Concesión) aplicarán para los Contratos de Distribución cuando corresponda.

            Forma

            El Código no requiere de ninguna forma en particular para celebrar este tipo de contratos. Sin embargo, comunmente estos contratos se realizan por escrito.

            Cláusulas Importantes

            Para todas las partes:

            1. a) Fuerza Mayor: considerando que en la Argentina tiende a existir un ambiente inestable para los negocios debido a razones políticas, las partes deben considerar la posibilidad de incluir en los contratos cláusulas de “cambios de legislación” o “acciones de gobierno” dentro de la definición de fuerza mayor.
            2. b) Seguro de los productos. Es importante que en caso de suceder algún siniestro con los productos, los mismos estén cubiertos para no perder todo el dinero de los mismos.
            3. c) Registración del producto.

            Para el proveedor:

            1. a) Pago (si es internacional, sin impuestos, cláusulas para recibir el monto total sin deducciones o retenciones).
            2. b) Moneda (en virtud de la inestabilidad del Peso Argentino, es importante establecer cláusulas de reajuste de precio o establecer el precio en Dólares Estadounidenses).
            3. c) Recall del Producto.
            4. d) Tiempo de entrega.
            5. e) Retrasos.
            6. f) Condiciones del stock.

            Para el distribuidor:

            1. a) Retornos.
            2. b) Compensación de clientela.
            3. c) Producto defectuoso.
            4. d) Muestras del producto.

            Incoterms

            En los contratos de distribución nacionales no es usual utilizar Incoterms. Sin embargo, en los contratos de distribución internacionales, es común utilizar los siguientes Incoterms:

            Para el transporte aereo: FCA (Free Carrier); para el transporte por barco: FOB(Free On Board).

            Responsabilidad sobre el Producto

            Conforme la Ley Nº 24.240 de Defensa del Consumidor, el consumidor tiene un plazo de 3 años para realizar un reclamo contra el distribudor y/o el proveedor, mientras que para otras partes de la cadena de comercialización, los cuales tiene una relación contractual directa con el distribuidor y/o proveedor (ej: minoristas que adquirieron los productos del distribuidor y/o un subcontratista del distribuidor), el plazo es de 10 años. En cualquier caso, los partes deben estar interesados en la posibilidad de establecer que el plazo de 3 años comience a contarse desde la fecha de vencimiento de los productos en lugar de la fecha de terminación del contrato (ej: un producto puede ser guardado y no vendido por un tiempo y por ende el plazo de 3 años retrasarse).

            Propiedad Intelectual

            El proveedor debe realizar y renovar la registración de las marcas de los productos en Argentina. En función de ello, es importante incluir una cláusula en el contrato que establezca que las marcas son de propiedad del proveedor y que el distribuidor únicamente puede usarlas en la medida que tenga autorización por parte del proveedor mientras se encuentre vigente el contrato. Asimismo, el distribuidor debe proteger las marcas del proveedor.

            Resolución

            Las Partes pueden acordar libremente como podrá resolverse el contrato. En caso de existir un cláusula de resolución sin causa, la misma debe tener un preaviso razonable para que la otra parte pueda conseguir otro distribuidor o enfrentar la pérdida del cliente, dependiendo quien ejerza la opción.

            Ley Aplicable y Jurisdicción

            Las partes pueden pactar la ley que consideren mejor para resolver cualqueir asunto del contrato. Asimismo, las partes también podrán elegir libremente que tribunal o arbitraje elegir dentro del país o en el extranjero.

            El autor de este post es Tomás García Navarro.

            President Erdogan made a presidential decree that mandatorily requires use of Turkish lira for transactions concluded between parties resident in Turkey. The Decree amending the Decree on Protecting the value of Turkish Lira, (The Decree) is published in the Official Gazette and came into force on 13th September 2018.

            The Decree orders use of Turkish Lira for purchase and sale of all kinds of goods, commodities, services and real estate. All kinds of lease and rental of vehicles and all kinds of goods and real estate must also be made by using Turkish Liras. The decree also stipulates that no reference to currency exchange tying a contract payment or value to foreign currency can be made and the all contracts between Turkish residents even if foreign owned must be based on Turkish Liras.

            Let’s see the changes introduced by the regulation point by point.

            No Use of Foreign Currency in domestic Contracts

            New currency policy states that all payments related to contracts between local parties i.e. Turkish Residents whether legal persons or real persons must be made in Turkish liras.

            Accordingly all real estate transactions must be made in Turkish liras and no reference can be made to foreign currencies.

            All Contracts Must be Amended within 30 days

            The Decree establishes also that all contracts between Turkish residents made before 13th September 2018 must be amended and the payments must be converted into Turkish liras from any foreign currency within 30 days from the publish date of The Decree (13th September 2018): this shall mean that all contracts based on foreign currencies must be amended within 14th October 2018.

            There is no reference to a currency exchange rate when amending contracts into Turkish Liras. The parties are free to agree on any currency rate when amending however this cannot be stipulated in the contract but only for negotiation purposed when drafting the amendment.

            The governmental projects which have been signed earlier should be coordinated with the related authority and adaption should be made in line with the new currency regime.

            Import and Export of Goods and Services

            The new decree does not impact an export or import relation, as long as one of the parties is not Turkish resident. However one must note that The Decree may have an impact on Turkish based subsidiaries of multinational companies trading with foreign currency.

            There is no limitation in bringing foreign currency into country.

            Sanctions

            New foreign currency policy does not address any criminal or administrative sanctions. New regulations should be expected to implement the practice of The Decree. Needless to say, if one of the parties of an existing contract based on foreign currency will be eager to take the matter to the civil courts if no amendment is made within 30 days and easily obtain a court decision for amendment.

            Conclusion

            This move is considered as one of the steps of measure step to support the ailing local currency.

            Slipping Turkish Liras has been an on-going concern for Turkey in last 6 months. The sudden drop of Turkish Liras exchange rate urged the government to find a quick cure to increase the value of Turkish liras or at least to maintain the status.

            Those days, some rough policies have been adopted by governments to safeguard the fragile Turkish Lira. The measures taken indeed prevented Turkish economy to accelerate and take off. With the new liberal look after 1983 elections many of these hard measures were lifted and the law on Protection of Turkish Liras was eased. The era before 1980s when there were hard policies applied to protect Turkish Lira was in a different world than today.

            The latest measure may or may not address an improvement but it is a fact that many foreign investors or local investors funded by foreign institutions will have to struggle due to the new regulations pushing them to amend their contracts into Turkish Liras from foreign currencies.

            Not what you would expect 

            When can you terminate, how should you terminate, and how much are you exposed?!

            The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.

            This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.

            However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.

            In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.

            Nevertheless, often the international corporation decides for various reasons (such as establishing an «in-house» operation» in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.

            What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?

            Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.

            Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.

            As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.

            The truth is the reasonability of the due notice varies from case to case!

            However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to «justify» avoiding a due notice period or adequate compensation.

            In this respect, in many cases simple «non-satisfaction» was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.

            There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.

            Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.

            Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.

            The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.

            In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.

            It is often the case – in practice – that an ongoing commercial relationship builds slowly over time through a series of sales agreements, without the parties ever signing an actual distribution agreement to set down their respective rights and responsibilities.

            At first blush this might appear to be a good thing: one can sidestep being bound, especially long-term, to the other party. But on closer scrutiny the solution becomes problematic, especially for anyone operating internationally.

            One of the key issues that arises when an international contractual arrangement is not in writing, is identifying the court with jurisdiction over any dispute arising therefrom. In the European Union, the issue is resolved by the provisions of Regulation 1215/2012 (“Brussels I recast”). Pursuant to Article 7 of the Regulation, as an alternative to the defendant’s courts, jurisdiction in a contractual dispute may lie with the court in the place of performance of the obligation in question. Next to this general rule are two criteria to identify the “place of performance”, differentiated according to the type of contract at issue. For a contract for goods, it is the place of delivery for the goods; in a contract for services, it is the place where the services are provided.   

            Thus, to identify the court with jurisdiction, it is crucial that a contract fall under one of these categories: goods or services.

            No doubt this distinction is quite simple in many circumstances. In the case of a distribution agreement, or of a commercial concession agreement, the issue may become thorny.

            The European Court of Justice has analysed this issue on a number of occasions, most recently in their judgement of 8 March 2018 (Case no. C-64/17) following the request for a preliminary ruling from a Portuguese Court of Appeal. The parties to the action were a Portuguese distributor, a company called Lusavouga, and a Belgian company called Saey Home & Garden, that produced articles for the home and garden, including a line of products branded “Barbecook”.

            Following Saey’s decision to break off the commercial relationship – notice of which was sent in an email dated 17 July 2014 – Lusavouga brought action in Portugal seeking compensation for the unexpected termination of the agreement, and goodwill indemnity. Saey raised a plea of lack of jurisdiction of the Portuguese court, citing their general conditions of sale (mentioned in their invoices) which required that a Court in Belgium be competent for dispute resolution.

            The facts thus presented two issues to be resolved in light of the Brussels I recast Regulation: deciding whether a jurisdiction clause in a vendor’s general terms and conditions pursuant to Art. 25 of the Regulation shall apply, and, if not, choosing the court with jurisdiction under Art. 7 of the Regulation.

            Shall a jurisdiction clause contained within a vendor’s general terms and conditions apply to a distribution relationship?

            The supplier company apparently considered their course of dealing with the Portuguese retailer nothing more than a concatenation of individual sales of goods, governed by their general terms and conditions. Consequently, they argued that any dispute arising from the relationship should be subject to the jurisdiction clause identifying Belgium as the court with jurisdiction under those terms and conditions.

            Thus, a determination was needed on whether, under these facts, there was a valid prorogation of jurisdiction under Article 25, paragraph 1 of Regulation 1215/2012.

            The Court of Justice has long opined that if the jurisdiction clause is included in the general contract conditions drafted by one of the parties, the contract signed by the other party must contain an express reference to those general conditions in order to ensure the real consent thereto by the parties (judgement of 14 December 1976, Estasis Salotti di Colzani, case no. 24/76; judgement of 16 March 1999, Castelletti, case no. C-159/97; judgement of 7 July 2016, Höszig, case no. C-225/15). Moreover, to be valid, the clause must involve a particular legal relationship (judgement of 20 April 2016, Profit Investment SIM, case no. C-366/13).

            In the instant case, the referring court found it self-evident that the legal relationship at bar was a commercial concession agreement entered into for the purpose of distributing Saey products in Spain, a contract that was not evidenced in writing.

            From this perspective, it is clear that the general conditions contained in the Saey invoices could have no bearing on the commercial concession agreement: assuming Lusavouga’s consent had been proven, the selection of Belgium as the forum would have applied if anything to the individual sales agreements, but not to those duties arising from the separate distribution agreement.

            What, then, would be the court with jurisdiction for the duties arising from the commercial concession agreement?

            Absent any jurisdiction clause, the issue would be decided under Art. 7, point 1 of Regulation 1215/2012, under which it becomes imperative to establish whether a contract is for goods or for services.

            The “provision of services” has been defined by the Court of Justice as an activity, not mere omissions, undertaken in return for remuneration (judgement of 23 April 2009, Falco, case no. C-533/07).

            With the judgements in Corman Collins of 19 December 2013 (case no. C-9/12), and Granarolo of 14 July 2016 (case no. C-196/15), the Court held that in a typical distribution agreement, the dealer renders a service, in that they are involved in increasing the distribution of supplier’s product, and receives in consideration therefor a competitive advantage, access to advertising platforms, know-how, or payment facilities. In light of such elements, the contract relationship should be deemed one for services. If on the other hand the commercial relationship is limited to a concatenation of agreements, each for the purpose of a delivery and pickup of merchandise, then what we have is not a typical distribution agreement, and the contractual relationship shall be construed as one for the sale of goods.

            Once the contract has been categorised as one for services, one must then determine “the place where, under the contract, the services are provided”. The Court specifies that such location shall be understood as the member state of the place of the main provision of services, as it follows from the provisions of the contract  or – as in the case at issue – the actual performance of the same. Only where it is impossible to identify such location shall the domicile of the party rendering the service be used.

            From the referring court’s description of the contractual relationship, and from the Court of Justice’s understanding of the distributor’s performance of services, it would be logical to find that the principal location for performance of services was Spain, where Lusavouga “was involved in increasing the distribution of products” of Saey.

            It is clear that neither the manufacturer nor the distributor would ever have intended such a result, and they might have avoided it being chosen for them by reducing their agreement in writing, including a jurisdiction clause therein.

            By the same token, viewed from the outside, the Portuguese judges’ apparent conviction that the situation was one of an actual dealership contract would leave ample room for debate. After all, a number of elements would lead to the opposite conclusion. However, even in terms of that aspect, the absence of a written contract left room for interpretation that might lead to unforeseen – and perhaps rather risky – consequences.

            In conclusion, the wisdom of setting down the terms and conditions of a sales distribution agreement in writing appears clear. This is not only because one can avoid those ambiguities we have described above, but also because it specifies other important clauses stipulated by the parties that should not be left to chance: exclusivity of area, if any, or with respect to specific sales channels, the contract period and termination notice, any duties to promote the product, control over end-user personal data, and the possibility of, and methods for, any online sales of products.

            Benedikt Rohrssen

            Áreas de práctica

            • Agencia
            • Contratos de distribución
            • e-commerce
            • Franquicia
            • Inversiones
            Contáctanos Benedikt

            Contacta con Benedikt





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              Germany – Distribution of original products and gray market

              22 de mayo de 2018

              • Alemania
              • Contratos de distribución

              On 1 January, the new Packaging Act (“Verpackungsgesetz”) will replace the existing Packaging Ordinance (“Verpackungsverordnung”). Non-compliance with the new rules may have very unpleasant consequences.

              For those who sell packaged goods to end consumers in Germany it is high noon: they have to adapt to the new packaging law, which comes into force on January 1, 2019.

              The main objective of the new law is that in the future all concerned parties will have to take responsibility and bear the costs of disposing their packaging. The legislator also wants to achieve the increase of the recycling rate of paper, plastic, metal or glass packaging, and to use as many readily recyclable materials as possible. Therefore, the fee that producers or distributors must pay for disposal will in future not only depend on the quantity and material type, but also more on the recyclability of the packaging.

              Who is affected by this law?

              Manufacturers, online dealers and distributors of packaged goods of all kinds.

              Affected are all so-called initial distributors of packaging, which typically end up at the private end consumer. These can be manufacturers, online dealers and distributors of packaged goods of all kinds, whether food, electrical appliances or furniture.

              All of them, if they place packaging on the market for the first time, must register with one of the dual systems already today and, depending on the quantity and material of the packaging waste, pay a participation fee to the German take-back system.

              It is new from next year on that they additionally have to register with the Central Agency Packaging Register and specify the amount of waste.

              This information will be publicly available. By doing so, the legislator wants to create transparency and ensure that all those who place «packaging» on the market fulfill their obligations.

              Also new is that the fees, which so far have been simply calculated according to quantity and type of material, should in future also depend on how well a material can be recycled.

              For example: Cardboard boxes, which usually consist of two-thirds of waste paper, are easily recyclable, as are aluminium cans, which can be reused to 100 percent. By contrast, the notorious coffee-to-go cups are not recyclable because they consist of a quasi-inseparable composite material.

              How exactly the gradations will look is not yet certain, as the dual systems still work on the implementation.

              Further innovations for beverage manufacturers and distributors

              The law contains several other changes that are particularly important for beverage manufacturers and distributors. The compulsory deposit for disposable containers will be extended to include a few types of beverages that were previously exempted, such as carbonated fruit and vegetable nectars. A new duty has been introduced for retailers, who must point out «with clearly visible signs» on disposable and reusable beverage packaging.As from 1st of January 2019 companies must also file the so-called Declaration of Compliance (“Vollstaendigkeitserklaerung”) with the Central Agency Packaging Register and not anymore with the respective local Chamber of Industry and Commerce.

              What is the Declaration of Compliance?

              A Declaration of Compliance is a verification concerning the volumes of sales packaging placed into the market by a manufacturer / distributor within one calendar year.

              The filing of the Declaration of Compliance, however, only affects larger manufacturers, since the de minimis limits are set quite high in this respect. For paper, cardboard or carton it is about 80 tons per year.

              Pre-registration is already possible as from September 2018. It is important to note, however, that every company involved in the system must perform the registration and data reporting «personally», meaning that this process may not be transferred to third parties.

              The respective database run by the Central Agency Packaging Register is called LUCID. Manufacturers, online dealers or initial distributors who preregister with LUCID will receive a provisional registration number, which will be sent to the Dual system with which they can sign a contract. There are currently nine companies offering this. Manufacturers who preregister in 2018 will automatically receive a registration confirmation from the Central Agency Packaging Register at the beginning of 2019. The registration including the indication of quantities is free and can be done online.

              The Central Agency Packaging Register is also responsible to monitor compliance with the regulations. However, at the end of the day, everyone can check the respective compliance as LUCID is a transparent register and open to everyone to search the register for specific manufacturers and brands.

              The law explains why this can have quite unpleasant consequences:

              In case the registration is omitted, there is automatically a ban on distribution of the packaging and there is a threat of fines to be imposed which may range up to 100.000 €! Due to the publicity of the register, agents not complying with the law may have to expect that their goods will be discontinued in the German trade.

              Still unclear issues

              The definition of packaging covered by this law is not quite clear. Transport packaging such as that used by a manufacturer for delivery to the dealer and disposed of there, for example, is not affected by the obligation to participate at the system and the new registration obligation. This packaging does not end up at the private end consumer. But what about wine boxes, for example? They are often only transport packaging, but some customers may take a whole box of their favorite wine with them. In addition, hotels and restaurants, such as those supplied by a retailer, are considered by law to be private end consumers.

              The author of this post is Olga Dimopoulou

              In a recent decision on the 24th of October 2018 (n°18-D-23), the French Competition Authority (Autorité de la Concurrence, aka AdlC) fined the Stihl company (leader in mechanized culture products) for his practices in his selective distribution network. Stihl managed to restrict the sale of its products by its authorized distributors on their own website and to prohibit them from marketing them on third-party platforms.

              The ruling is considered by the AdlC as having «vocation to clarify the framework applicable in France for the different sectors and products, beyond the sole sector of the mechanized culture».

              In this case the network implemented by the supplier was a selective distribution network. Therefore, AdlC’s position can only concern the implementation of a selective distribution network and is not applicable to an exclusive distribution network (see our Update Distribution/Competition, April 2018).

              1. The lawfulness of the selective distribution network

              The Authority follows the traditional analysis of validity of a selective distribution network. First, it highlights that selection of resellers was based on objective criteria such as qualitative nature, applied in a uniform manner and without any discrimination.

              Then, the Authority had to determine whether the qualitative criterion conditioning the lawfulness of the selective distribution system was fulfilled or not. The Authority has decided that the fact that products in question are of a delicate assembly and that some of them even present risks for safety of users, justifies setting up a network of selective distribution.

              1. The lawfulness of the ban on selling technical products on third-party platforms

              The decision of the AdlC was especially expected on this point because it had to take into account rulings rendered by the CJEU and then by the Paris Court of Appeal in the Coty cases ((CJUE 6/12/17, affaire 230/16; Cour d’appel de Paris, pôle 5, ch 4, 28 février 2018, n° 16/02263). The question was: the right of suppliers to prohibit their authorized distributors from distributing their products on third-party platforms is limited to luxury goods only (the Coty hypothesis) or could be extended to include others products? The hypothesis of this extension had already been addressed by other courts in Europe and also by the Advocate General before the CJEU (see our Update Distribution/Competition, December 2017) and then by the European Commission.

              In a nutshell the Authority extends the Coty case law to technical products whether they are dangerous or not.

              First of all, the Authority notes that «prohibition to sell on platforms contributes to preserving the safety of consumers and to guaranteeing the brand image and the quality of the products concerned».

              Then, the Authority checked whether this restriction did not go beyond what is necessary in regards to characteristics of products in question. It notes that in the case of third-party platforms, this restriction allows supplier to control that its distributors comply with requirements of distribution network.

              Finally, the AdlC checked whether this prohibition was not disproportionate, and in this case, noted that there is no disproportion in so far as distribution on third-party marketplaces is not a main marketing channel for mechanized culture products.

              This result (validation of the ban on the sale of products on third-party platforms) may allow many economic operators to believe legitimately that the scope of the Coty case law can be broad.

              1. Prohibition of restrictions on resale of products on distributors’ websites

              However the AdlC has refused to approve the clause restricting resale of products by distributors on their own websites.

              In this case, if customers of the distributors could place an order online, they had to, for products with a certain dangerous nature (such as chainsaw, pruner, brushcutter, etc.) either come to withdraw the product at a (physical) sell point owned by distributor or to be delivered by the distributor. Distributor had indeed underwritten a complete obligation to «put in hand» the machine, including the oral communication of usage instructions and a demonstration.

              The AdlC decided that this obligation to put in hand was actually to cancel advantages attached to Internet selling and thus to prohibit purely and simply Internet selling. According to the Authority, this restriction went beyond what is necessary to preserve consumer’s health.

              The AdlC had to determine whether this restriction was a restriction by object or effect. According to the Authority, the restriction at stake reduced the ability of distributors to sell products outside their usual customers catchment area, and as such should be characterized as a competitive restriction by object.

              On possible exemptions issues, the Authority first rejects the possibility of category exemption within the meaning of the EU Block Exemption Regulation No 330/2010, the anti-competitive practice being comparable to a restriction characterized by passive sales within the meaning of Article 4, para. (c). Possibility of an individual exemption was also rejected by the Authority after examining any efficiency gains related to this «put in hand» obligation.

              The Authority could have taken advantage of this particular case, to refine the Pierre Fabre / Bang & Olufsen case law and validate and update sales restrictions on the Internet when the proper nature or quality of products justifies such a restriction.

              In summary, the marketing of products involving high technicality or which tend to be dangerous by using it:

              • justifies the implementation of a selective distribution network;
              • may be prohibited on third party platforms (if the selective distribution network is considered lawful);
              • could not be restricted on the websites of authorized distributors of a lawful selective network, for lack of «efficiency gain» in favor of consumers, according to a very (too?) strict position of the AdlC.

              On this last point, it will probably be necessary to wait for a clearer solution given by the Court of Appeal of Paris (in front of which a recourse is now pending) or the Court of Cassation.

              Very frequently, different business settings present the opportunity to sign a Non-Disclosure Agreement (“NDA”) and a Memorandum of Understanding (“MoU”) or Letter of Intent (“LoI”), so much so that these three acronyms – NDA, MoU and Lol – are now commonly used, particularly throughout international negotiations.

              However, often times, these contracts are used in an improper way and with different purposes than those for which they were established in international commercial praxis, with the result that they are either not useful because they do not effectively protect the parties’ interests, or are counterproductive.

              We shall start by taking a look at the characteristics of the Non-Disclosure Agreement – NDA – and how it should be used.

              What is a NDA?

              The NDA is an agreement whose function is to protect the confidential information that the parties (generally identified, respectively as the “Disclosing Party” and the “Receiving Party”) intend sharing, in different possible scenarios: forwarding of information for a preliminary due diligence relating to an investment, the evaluation of commercial data for a distribution contract, technical specifications related to a certain product that is subject of transfer of technology etc.

              The first step of the negotiations, in fact, often requires that different types of information whether technical, financial or commercial, are made available by one or both parties, and the need for this information to remain confidential (hereinafter the “Confidential Information”) during and after the conclusion of the negotiations.

              NDA – Who are the parties?

              Right from the recitals of the agreement, it is very important to correctly identify the parties obliged to safeguard the information and maintain its confidentiality, especially when group companies are involved, and where the interlocutors may be many and located in different countries. In such cases, it is advisable to oblige the Receiving Party to guarantee confidentiality by all the companies by means of a specific clause. It is also important that the agreement accurately indicates the people belonging to the Receiving Party’s organization (such as: employees, technical consultants, experts, collaborators, etc.) who have a right to access the information, if possible by signing a confidentiality agreement by all the people involved.

              NDA – What is Confidential Information?

              The use of recycled NDA templates, found on forms or proposed by the counterparty is certainly not a recommended practice, but unfortunately one that is very widespread. These templates are very often generic and include broad definitions of Confidential Information as well as very detailed lists which actually include all contents of a business activity, often including areas that are not applicable to the object of the activity being negotiated, or information that is actually not reserved.

              The problem regarding these templates is that it is difficult, ex post, to verify whether certain information  would have been included in the Confidential Information, for example either because it would be difficult to determine whether the Receiving Party would have already been in possession before the signing of the NDA, or because the information would not have been expressly mentioned in a clause that contains a very detailed list, but which does not include the individual piece of information that is of interest, or lastly because after the signing of the NDA, the Confidential Information would have been shared using non-secure and non-traceable procedures (for example as an email attachment).

              The best way to proceed is that of identifying in a very specific way only the information that needs to be shared, listing the documents in an attachment to the NDA, thereafter making them available in a format that leaves no doubt regarding their confidentiality, for example by marking them with a watermark or stamp “Confidential under NDA”. Furthermore, a good praxis is to provide access to the Confidential Information only through a secure way (such as a reserved cloud , accessible only through an individual user name and password that is given to authorized people).

              NDA – Prohibition from using the Confidential Information

              Often times through the standard NDA templates, the Receiving Party is only obliged to maintain the Confidential Information reserved, without being prohibited from its use which – especially in cases of competitor companies – may be more dangerous than divulging the information: imagine technology development or patents based on data acquired, or the use of lists of clients or other commercial information. To highlight and strengthen this obligation it would be more correct to name the document Non-Disclosure and Non-Use Agreement (“NDNUA”).

              NDA – Duration

              The function of the NDA is to protect the Confidential Information for the entire time during which it needs to be shared between the Parties. It is therefore important to clearly indicate the last moment the information will be used and – in the event that the Receiving Party is in possession of a copy of the Confidential Information – ensure that the Receiving Party returns or destroys the documents and shall maintain the Information reserved and shall refrain from using the Information for a few months (better years) following the termination of the NDA.

              Breach of the NDA

              Attempting to quantify the damages resulting from a breach of the confidentiality clause is generally very complex: it may therefore be useful to provide for a penalty clause, that establishes a certain amount for the damage deriving from a contractual non-fulfilment. To this effect it is important to consider that the estimate of the penalty shall be reasonable in relation to the damage assumed to derive from the breach of confidentiality, and that different types of penalties can be established according to different cases of non-fulfilment (for example, registration or counterfeit of a patent through the use of shared technical information, or contact with certain business partners).

              There is also another advantage inserting a penalty clause in the NDA: if during the negotiations the Receiving Party objects to the clause or requests it to be reduced, it may indicate a mental reservation of default, and in any case is symptomatic of a fear of having to pay this amount, which would have no reason to exist if the party intended abiding strictly to the contractual obligations.

              NDA – Litigation, jurisdiction and applicable law

              Even in this case there is an unfortunate practice, which is that of relegating this type of clause to the end of the agreement (concerning the so-called midnight clauses, to this effect you may refer to this post on  legalmondo) and thus not dedicate enough attention to its contents, which may lead to adopting clauses that are completely wrong (or worse still, null).

              In reality this is a very important provision, which leads to ensuring contractual enforcement and/or obtaining a judicial decision that may be executed in a rapid and effective way. There is no solution that applies to all cases and the individual  negotiation need to be considered: for example in an NDA with a Chinese counterpart it may be counterproductive to choose the Italian jurisdiction and apply Italian law, given that in the event of non-fulfilment it is usually necessary to take legal action and enforce the judicial or arbitral decision in China (even with interim – urgent measures). It would therefore be more opportune, to draft an NDA with an English/Chinese bilingual text and provide for an arbitration in China, applying Chinese law.

              NDA – Conclusion

              The NDA is a fundamental tool to protect confidential information, and this can be achieved only if it is well drafted, taking into consideration the specific case at hand: it is advisable to refrain from the “do-it-yourself” and seek legal advice from a lawyer who knows how to draw up an NDA bearing in mind all the characteristics of this type of contract  (type of negotiation, information to be shared, location of the parties and countries where the NDA will be executed).

              Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

              It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

              And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

              The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

              The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

              1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

              Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

              1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
              2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
              3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
              4. Costs are reasonable and known in advance.
              5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

              To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project

              El Código Civil y Comercial de la República Argentina (el “Código”) no contiene artículos específicos para los contratos de distribución. Por ello, al contrato de distribución se lo considera como un “contrato innominado”, el cual contiene, entre otras cosas, elementos de los contratos de compraventa, agencia y mandato. Por lo tanto, si el contrato de distribución no posee una regla específica para un caso particular, las partes deben aplicar por analogía los artículos de estos tres tipos de contratos (compraventa, agencia y mandato) como reglas standard hasta el punto de que sean aplicables en casa caso. Asimismo, el Artículo 1511 del Código establece que las reglas del Capítulo 18 (Contratos de Concesión) aplicarán para los Contratos de Distribución cuando corresponda.

              Forma

              El Código no requiere de ninguna forma en particular para celebrar este tipo de contratos. Sin embargo, comunmente estos contratos se realizan por escrito.

              Cláusulas Importantes

              Para todas las partes:

              1. a) Fuerza Mayor: considerando que en la Argentina tiende a existir un ambiente inestable para los negocios debido a razones políticas, las partes deben considerar la posibilidad de incluir en los contratos cláusulas de “cambios de legislación” o “acciones de gobierno” dentro de la definición de fuerza mayor.
              2. b) Seguro de los productos. Es importante que en caso de suceder algún siniestro con los productos, los mismos estén cubiertos para no perder todo el dinero de los mismos.
              3. c) Registración del producto.

              Para el proveedor:

              1. a) Pago (si es internacional, sin impuestos, cláusulas para recibir el monto total sin deducciones o retenciones).
              2. b) Moneda (en virtud de la inestabilidad del Peso Argentino, es importante establecer cláusulas de reajuste de precio o establecer el precio en Dólares Estadounidenses).
              3. c) Recall del Producto.
              4. d) Tiempo de entrega.
              5. e) Retrasos.
              6. f) Condiciones del stock.

              Para el distribuidor:

              1. a) Retornos.
              2. b) Compensación de clientela.
              3. c) Producto defectuoso.
              4. d) Muestras del producto.

              Incoterms

              En los contratos de distribución nacionales no es usual utilizar Incoterms. Sin embargo, en los contratos de distribución internacionales, es común utilizar los siguientes Incoterms:

              Para el transporte aereo: FCA (Free Carrier); para el transporte por barco: FOB(Free On Board).

              Responsabilidad sobre el Producto

              Conforme la Ley Nº 24.240 de Defensa del Consumidor, el consumidor tiene un plazo de 3 años para realizar un reclamo contra el distribudor y/o el proveedor, mientras que para otras partes de la cadena de comercialización, los cuales tiene una relación contractual directa con el distribuidor y/o proveedor (ej: minoristas que adquirieron los productos del distribuidor y/o un subcontratista del distribuidor), el plazo es de 10 años. En cualquier caso, los partes deben estar interesados en la posibilidad de establecer que el plazo de 3 años comience a contarse desde la fecha de vencimiento de los productos en lugar de la fecha de terminación del contrato (ej: un producto puede ser guardado y no vendido por un tiempo y por ende el plazo de 3 años retrasarse).

              Propiedad Intelectual

              El proveedor debe realizar y renovar la registración de las marcas de los productos en Argentina. En función de ello, es importante incluir una cláusula en el contrato que establezca que las marcas son de propiedad del proveedor y que el distribuidor únicamente puede usarlas en la medida que tenga autorización por parte del proveedor mientras se encuentre vigente el contrato. Asimismo, el distribuidor debe proteger las marcas del proveedor.

              Resolución

              Las Partes pueden acordar libremente como podrá resolverse el contrato. En caso de existir un cláusula de resolución sin causa, la misma debe tener un preaviso razonable para que la otra parte pueda conseguir otro distribuidor o enfrentar la pérdida del cliente, dependiendo quien ejerza la opción.

              Ley Aplicable y Jurisdicción

              Las partes pueden pactar la ley que consideren mejor para resolver cualqueir asunto del contrato. Asimismo, las partes también podrán elegir libremente que tribunal o arbitraje elegir dentro del país o en el extranjero.

              El autor de este post es Tomás García Navarro.

              President Erdogan made a presidential decree that mandatorily requires use of Turkish lira for transactions concluded between parties resident in Turkey. The Decree amending the Decree on Protecting the value of Turkish Lira, (The Decree) is published in the Official Gazette and came into force on 13th September 2018.

              The Decree orders use of Turkish Lira for purchase and sale of all kinds of goods, commodities, services and real estate. All kinds of lease and rental of vehicles and all kinds of goods and real estate must also be made by using Turkish Liras. The decree also stipulates that no reference to currency exchange tying a contract payment or value to foreign currency can be made and the all contracts between Turkish residents even if foreign owned must be based on Turkish Liras.

              Let’s see the changes introduced by the regulation point by point.

              No Use of Foreign Currency in domestic Contracts

              New currency policy states that all payments related to contracts between local parties i.e. Turkish Residents whether legal persons or real persons must be made in Turkish liras.

              Accordingly all real estate transactions must be made in Turkish liras and no reference can be made to foreign currencies.

              All Contracts Must be Amended within 30 days

              The Decree establishes also that all contracts between Turkish residents made before 13th September 2018 must be amended and the payments must be converted into Turkish liras from any foreign currency within 30 days from the publish date of The Decree (13th September 2018): this shall mean that all contracts based on foreign currencies must be amended within 14th October 2018.

              There is no reference to a currency exchange rate when amending contracts into Turkish Liras. The parties are free to agree on any currency rate when amending however this cannot be stipulated in the contract but only for negotiation purposed when drafting the amendment.

              The governmental projects which have been signed earlier should be coordinated with the related authority and adaption should be made in line with the new currency regime.

              Import and Export of Goods and Services

              The new decree does not impact an export or import relation, as long as one of the parties is not Turkish resident. However one must note that The Decree may have an impact on Turkish based subsidiaries of multinational companies trading with foreign currency.

              There is no limitation in bringing foreign currency into country.

              Sanctions

              New foreign currency policy does not address any criminal or administrative sanctions. New regulations should be expected to implement the practice of The Decree. Needless to say, if one of the parties of an existing contract based on foreign currency will be eager to take the matter to the civil courts if no amendment is made within 30 days and easily obtain a court decision for amendment.

              Conclusion

              This move is considered as one of the steps of measure step to support the ailing local currency.

              Slipping Turkish Liras has been an on-going concern for Turkey in last 6 months. The sudden drop of Turkish Liras exchange rate urged the government to find a quick cure to increase the value of Turkish liras or at least to maintain the status.

              Those days, some rough policies have been adopted by governments to safeguard the fragile Turkish Lira. The measures taken indeed prevented Turkish economy to accelerate and take off. With the new liberal look after 1983 elections many of these hard measures were lifted and the law on Protection of Turkish Liras was eased. The era before 1980s when there were hard policies applied to protect Turkish Lira was in a different world than today.

              The latest measure may or may not address an improvement but it is a fact that many foreign investors or local investors funded by foreign institutions will have to struggle due to the new regulations pushing them to amend their contracts into Turkish Liras from foreign currencies.

              Not what you would expect 

              When can you terminate, how should you terminate, and how much are you exposed?!

              The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.

              This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.

              However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.

              In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.

              Nevertheless, often the international corporation decides for various reasons (such as establishing an «in-house» operation» in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.

              What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?

              Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.

              Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.

              As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.

              The truth is the reasonability of the due notice varies from case to case!

              However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to «justify» avoiding a due notice period or adequate compensation.

              In this respect, in many cases simple «non-satisfaction» was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.

              There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.

              Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.

              Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.

              The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.

              In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.

              It is often the case – in practice – that an ongoing commercial relationship builds slowly over time through a series of sales agreements, without the parties ever signing an actual distribution agreement to set down their respective rights and responsibilities.

              At first blush this might appear to be a good thing: one can sidestep being bound, especially long-term, to the other party. But on closer scrutiny the solution becomes problematic, especially for anyone operating internationally.

              One of the key issues that arises when an international contractual arrangement is not in writing, is identifying the court with jurisdiction over any dispute arising therefrom. In the European Union, the issue is resolved by the provisions of Regulation 1215/2012 (“Brussels I recast”). Pursuant to Article 7 of the Regulation, as an alternative to the defendant’s courts, jurisdiction in a contractual dispute may lie with the court in the place of performance of the obligation in question. Next to this general rule are two criteria to identify the “place of performance”, differentiated according to the type of contract at issue. For a contract for goods, it is the place of delivery for the goods; in a contract for services, it is the place where the services are provided.   

              Thus, to identify the court with jurisdiction, it is crucial that a contract fall under one of these categories: goods or services.

              No doubt this distinction is quite simple in many circumstances. In the case of a distribution agreement, or of a commercial concession agreement, the issue may become thorny.

              The European Court of Justice has analysed this issue on a number of occasions, most recently in their judgement of 8 March 2018 (Case no. C-64/17) following the request for a preliminary ruling from a Portuguese Court of Appeal. The parties to the action were a Portuguese distributor, a company called Lusavouga, and a Belgian company called Saey Home & Garden, that produced articles for the home and garden, including a line of products branded “Barbecook”.

              Following Saey’s decision to break off the commercial relationship – notice of which was sent in an email dated 17 July 2014 – Lusavouga brought action in Portugal seeking compensation for the unexpected termination of the agreement, and goodwill indemnity. Saey raised a plea of lack of jurisdiction of the Portuguese court, citing their general conditions of sale (mentioned in their invoices) which required that a Court in Belgium be competent for dispute resolution.

              The facts thus presented two issues to be resolved in light of the Brussels I recast Regulation: deciding whether a jurisdiction clause in a vendor’s general terms and conditions pursuant to Art. 25 of the Regulation shall apply, and, if not, choosing the court with jurisdiction under Art. 7 of the Regulation.

              Shall a jurisdiction clause contained within a vendor’s general terms and conditions apply to a distribution relationship?

              The supplier company apparently considered their course of dealing with the Portuguese retailer nothing more than a concatenation of individual sales of goods, governed by their general terms and conditions. Consequently, they argued that any dispute arising from the relationship should be subject to the jurisdiction clause identifying Belgium as the court with jurisdiction under those terms and conditions.

              Thus, a determination was needed on whether, under these facts, there was a valid prorogation of jurisdiction under Article 25, paragraph 1 of Regulation 1215/2012.

              The Court of Justice has long opined that if the jurisdiction clause is included in the general contract conditions drafted by one of the parties, the contract signed by the other party must contain an express reference to those general conditions in order to ensure the real consent thereto by the parties (judgement of 14 December 1976, Estasis Salotti di Colzani, case no. 24/76; judgement of 16 March 1999, Castelletti, case no. C-159/97; judgement of 7 July 2016, Höszig, case no. C-225/15). Moreover, to be valid, the clause must involve a particular legal relationship (judgement of 20 April 2016, Profit Investment SIM, case no. C-366/13).

              In the instant case, the referring court found it self-evident that the legal relationship at bar was a commercial concession agreement entered into for the purpose of distributing Saey products in Spain, a contract that was not evidenced in writing.

              From this perspective, it is clear that the general conditions contained in the Saey invoices could have no bearing on the commercial concession agreement: assuming Lusavouga’s consent had been proven, the selection of Belgium as the forum would have applied if anything to the individual sales agreements, but not to those duties arising from the separate distribution agreement.

              What, then, would be the court with jurisdiction for the duties arising from the commercial concession agreement?

              Absent any jurisdiction clause, the issue would be decided under Art. 7, point 1 of Regulation 1215/2012, under which it becomes imperative to establish whether a contract is for goods or for services.

              The “provision of services” has been defined by the Court of Justice as an activity, not mere omissions, undertaken in return for remuneration (judgement of 23 April 2009, Falco, case no. C-533/07).

              With the judgements in Corman Collins of 19 December 2013 (case no. C-9/12), and Granarolo of 14 July 2016 (case no. C-196/15), the Court held that in a typical distribution agreement, the dealer renders a service, in that they are involved in increasing the distribution of supplier’s product, and receives in consideration therefor a competitive advantage, access to advertising platforms, know-how, or payment facilities. In light of such elements, the contract relationship should be deemed one for services. If on the other hand the commercial relationship is limited to a concatenation of agreements, each for the purpose of a delivery and pickup of merchandise, then what we have is not a typical distribution agreement, and the contractual relationship shall be construed as one for the sale of goods.

              Once the contract has been categorised as one for services, one must then determine “the place where, under the contract, the services are provided”. The Court specifies that such location shall be understood as the member state of the place of the main provision of services, as it follows from the provisions of the contract  or – as in the case at issue – the actual performance of the same. Only where it is impossible to identify such location shall the domicile of the party rendering the service be used.

              From the referring court’s description of the contractual relationship, and from the Court of Justice’s understanding of the distributor’s performance of services, it would be logical to find that the principal location for performance of services was Spain, where Lusavouga “was involved in increasing the distribution of products” of Saey.

              It is clear that neither the manufacturer nor the distributor would ever have intended such a result, and they might have avoided it being chosen for them by reducing their agreement in writing, including a jurisdiction clause therein.

              By the same token, viewed from the outside, the Portuguese judges’ apparent conviction that the situation was one of an actual dealership contract would leave ample room for debate. After all, a number of elements would lead to the opposite conclusion. However, even in terms of that aspect, the absence of a written contract left room for interpretation that might lead to unforeseen – and perhaps rather risky – consequences.

              In conclusion, the wisdom of setting down the terms and conditions of a sales distribution agreement in writing appears clear. This is not only because one can avoid those ambiguities we have described above, but also because it specifies other important clauses stipulated by the parties that should not be left to chance: exclusivity of area, if any, or with respect to specific sales channels, the contract period and termination notice, any duties to promote the product, control over end-user personal data, and the possibility of, and methods for, any online sales of products.

              Mediación y contratos de franquicia – recomendaciones

              3 de mayo de 2018

              • España
              • Contratos de distribución
              • Franquicia

              On 1 January, the new Packaging Act (“Verpackungsgesetz”) will replace the existing Packaging Ordinance (“Verpackungsverordnung”). Non-compliance with the new rules may have very unpleasant consequences.

              For those who sell packaged goods to end consumers in Germany it is high noon: they have to adapt to the new packaging law, which comes into force on January 1, 2019.

              The main objective of the new law is that in the future all concerned parties will have to take responsibility and bear the costs of disposing their packaging. The legislator also wants to achieve the increase of the recycling rate of paper, plastic, metal or glass packaging, and to use as many readily recyclable materials as possible. Therefore, the fee that producers or distributors must pay for disposal will in future not only depend on the quantity and material type, but also more on the recyclability of the packaging.

              Who is affected by this law?

              Manufacturers, online dealers and distributors of packaged goods of all kinds.

              Affected are all so-called initial distributors of packaging, which typically end up at the private end consumer. These can be manufacturers, online dealers and distributors of packaged goods of all kinds, whether food, electrical appliances or furniture.

              All of them, if they place packaging on the market for the first time, must register with one of the dual systems already today and, depending on the quantity and material of the packaging waste, pay a participation fee to the German take-back system.

              It is new from next year on that they additionally have to register with the Central Agency Packaging Register and specify the amount of waste.

              This information will be publicly available. By doing so, the legislator wants to create transparency and ensure that all those who place «packaging» on the market fulfill their obligations.

              Also new is that the fees, which so far have been simply calculated according to quantity and type of material, should in future also depend on how well a material can be recycled.

              For example: Cardboard boxes, which usually consist of two-thirds of waste paper, are easily recyclable, as are aluminium cans, which can be reused to 100 percent. By contrast, the notorious coffee-to-go cups are not recyclable because they consist of a quasi-inseparable composite material.

              How exactly the gradations will look is not yet certain, as the dual systems still work on the implementation.

              Further innovations for beverage manufacturers and distributors

              The law contains several other changes that are particularly important for beverage manufacturers and distributors. The compulsory deposit for disposable containers will be extended to include a few types of beverages that were previously exempted, such as carbonated fruit and vegetable nectars. A new duty has been introduced for retailers, who must point out «with clearly visible signs» on disposable and reusable beverage packaging.As from 1st of January 2019 companies must also file the so-called Declaration of Compliance (“Vollstaendigkeitserklaerung”) with the Central Agency Packaging Register and not anymore with the respective local Chamber of Industry and Commerce.

              What is the Declaration of Compliance?

              A Declaration of Compliance is a verification concerning the volumes of sales packaging placed into the market by a manufacturer / distributor within one calendar year.

              The filing of the Declaration of Compliance, however, only affects larger manufacturers, since the de minimis limits are set quite high in this respect. For paper, cardboard or carton it is about 80 tons per year.

              Pre-registration is already possible as from September 2018. It is important to note, however, that every company involved in the system must perform the registration and data reporting «personally», meaning that this process may not be transferred to third parties.

              The respective database run by the Central Agency Packaging Register is called LUCID. Manufacturers, online dealers or initial distributors who preregister with LUCID will receive a provisional registration number, which will be sent to the Dual system with which they can sign a contract. There are currently nine companies offering this. Manufacturers who preregister in 2018 will automatically receive a registration confirmation from the Central Agency Packaging Register at the beginning of 2019. The registration including the indication of quantities is free and can be done online.

              The Central Agency Packaging Register is also responsible to monitor compliance with the regulations. However, at the end of the day, everyone can check the respective compliance as LUCID is a transparent register and open to everyone to search the register for specific manufacturers and brands.

              The law explains why this can have quite unpleasant consequences:

              In case the registration is omitted, there is automatically a ban on distribution of the packaging and there is a threat of fines to be imposed which may range up to 100.000 €! Due to the publicity of the register, agents not complying with the law may have to expect that their goods will be discontinued in the German trade.

              Still unclear issues

              The definition of packaging covered by this law is not quite clear. Transport packaging such as that used by a manufacturer for delivery to the dealer and disposed of there, for example, is not affected by the obligation to participate at the system and the new registration obligation. This packaging does not end up at the private end consumer. But what about wine boxes, for example? They are often only transport packaging, but some customers may take a whole box of their favorite wine with them. In addition, hotels and restaurants, such as those supplied by a retailer, are considered by law to be private end consumers.

              The author of this post is Olga Dimopoulou

              In a recent decision on the 24th of October 2018 (n°18-D-23), the French Competition Authority (Autorité de la Concurrence, aka AdlC) fined the Stihl company (leader in mechanized culture products) for his practices in his selective distribution network. Stihl managed to restrict the sale of its products by its authorized distributors on their own website and to prohibit them from marketing them on third-party platforms.

              The ruling is considered by the AdlC as having «vocation to clarify the framework applicable in France for the different sectors and products, beyond the sole sector of the mechanized culture».

              In this case the network implemented by the supplier was a selective distribution network. Therefore, AdlC’s position can only concern the implementation of a selective distribution network and is not applicable to an exclusive distribution network (see our Update Distribution/Competition, April 2018).

              1. The lawfulness of the selective distribution network

              The Authority follows the traditional analysis of validity of a selective distribution network. First, it highlights that selection of resellers was based on objective criteria such as qualitative nature, applied in a uniform manner and without any discrimination.

              Then, the Authority had to determine whether the qualitative criterion conditioning the lawfulness of the selective distribution system was fulfilled or not. The Authority has decided that the fact that products in question are of a delicate assembly and that some of them even present risks for safety of users, justifies setting up a network of selective distribution.

              1. The lawfulness of the ban on selling technical products on third-party platforms

              The decision of the AdlC was especially expected on this point because it had to take into account rulings rendered by the CJEU and then by the Paris Court of Appeal in the Coty cases ((CJUE 6/12/17, affaire 230/16; Cour d’appel de Paris, pôle 5, ch 4, 28 février 2018, n° 16/02263). The question was: the right of suppliers to prohibit their authorized distributors from distributing their products on third-party platforms is limited to luxury goods only (the Coty hypothesis) or could be extended to include others products? The hypothesis of this extension had already been addressed by other courts in Europe and also by the Advocate General before the CJEU (see our Update Distribution/Competition, December 2017) and then by the European Commission.

              In a nutshell the Authority extends the Coty case law to technical products whether they are dangerous or not.

              First of all, the Authority notes that «prohibition to sell on platforms contributes to preserving the safety of consumers and to guaranteeing the brand image and the quality of the products concerned».

              Then, the Authority checked whether this restriction did not go beyond what is necessary in regards to characteristics of products in question. It notes that in the case of third-party platforms, this restriction allows supplier to control that its distributors comply with requirements of distribution network.

              Finally, the AdlC checked whether this prohibition was not disproportionate, and in this case, noted that there is no disproportion in so far as distribution on third-party marketplaces is not a main marketing channel for mechanized culture products.

              This result (validation of the ban on the sale of products on third-party platforms) may allow many economic operators to believe legitimately that the scope of the Coty case law can be broad.

              1. Prohibition of restrictions on resale of products on distributors’ websites

              However the AdlC has refused to approve the clause restricting resale of products by distributors on their own websites.

              In this case, if customers of the distributors could place an order online, they had to, for products with a certain dangerous nature (such as chainsaw, pruner, brushcutter, etc.) either come to withdraw the product at a (physical) sell point owned by distributor or to be delivered by the distributor. Distributor had indeed underwritten a complete obligation to «put in hand» the machine, including the oral communication of usage instructions and a demonstration.

              The AdlC decided that this obligation to put in hand was actually to cancel advantages attached to Internet selling and thus to prohibit purely and simply Internet selling. According to the Authority, this restriction went beyond what is necessary to preserve consumer’s health.

              The AdlC had to determine whether this restriction was a restriction by object or effect. According to the Authority, the restriction at stake reduced the ability of distributors to sell products outside their usual customers catchment area, and as such should be characterized as a competitive restriction by object.

              On possible exemptions issues, the Authority first rejects the possibility of category exemption within the meaning of the EU Block Exemption Regulation No 330/2010, the anti-competitive practice being comparable to a restriction characterized by passive sales within the meaning of Article 4, para. (c). Possibility of an individual exemption was also rejected by the Authority after examining any efficiency gains related to this «put in hand» obligation.

              The Authority could have taken advantage of this particular case, to refine the Pierre Fabre / Bang & Olufsen case law and validate and update sales restrictions on the Internet when the proper nature or quality of products justifies such a restriction.

              In summary, the marketing of products involving high technicality or which tend to be dangerous by using it:

              • justifies the implementation of a selective distribution network;
              • may be prohibited on third party platforms (if the selective distribution network is considered lawful);
              • could not be restricted on the websites of authorized distributors of a lawful selective network, for lack of «efficiency gain» in favor of consumers, according to a very (too?) strict position of the AdlC.

              On this last point, it will probably be necessary to wait for a clearer solution given by the Court of Appeal of Paris (in front of which a recourse is now pending) or the Court of Cassation.

              Very frequently, different business settings present the opportunity to sign a Non-Disclosure Agreement (“NDA”) and a Memorandum of Understanding (“MoU”) or Letter of Intent (“LoI”), so much so that these three acronyms – NDA, MoU and Lol – are now commonly used, particularly throughout international negotiations.

              However, often times, these contracts are used in an improper way and with different purposes than those for which they were established in international commercial praxis, with the result that they are either not useful because they do not effectively protect the parties’ interests, or are counterproductive.

              We shall start by taking a look at the characteristics of the Non-Disclosure Agreement – NDA – and how it should be used.

              What is a NDA?

              The NDA is an agreement whose function is to protect the confidential information that the parties (generally identified, respectively as the “Disclosing Party” and the “Receiving Party”) intend sharing, in different possible scenarios: forwarding of information for a preliminary due diligence relating to an investment, the evaluation of commercial data for a distribution contract, technical specifications related to a certain product that is subject of transfer of technology etc.

              The first step of the negotiations, in fact, often requires that different types of information whether technical, financial or commercial, are made available by one or both parties, and the need for this information to remain confidential (hereinafter the “Confidential Information”) during and after the conclusion of the negotiations.

              NDA – Who are the parties?

              Right from the recitals of the agreement, it is very important to correctly identify the parties obliged to safeguard the information and maintain its confidentiality, especially when group companies are involved, and where the interlocutors may be many and located in different countries. In such cases, it is advisable to oblige the Receiving Party to guarantee confidentiality by all the companies by means of a specific clause. It is also important that the agreement accurately indicates the people belonging to the Receiving Party’s organization (such as: employees, technical consultants, experts, collaborators, etc.) who have a right to access the information, if possible by signing a confidentiality agreement by all the people involved.

              NDA – What is Confidential Information?

              The use of recycled NDA templates, found on forms or proposed by the counterparty is certainly not a recommended practice, but unfortunately one that is very widespread. These templates are very often generic and include broad definitions of Confidential Information as well as very detailed lists which actually include all contents of a business activity, often including areas that are not applicable to the object of the activity being negotiated, or information that is actually not reserved.

              The problem regarding these templates is that it is difficult, ex post, to verify whether certain information  would have been included in the Confidential Information, for example either because it would be difficult to determine whether the Receiving Party would have already been in possession before the signing of the NDA, or because the information would not have been expressly mentioned in a clause that contains a very detailed list, but which does not include the individual piece of information that is of interest, or lastly because after the signing of the NDA, the Confidential Information would have been shared using non-secure and non-traceable procedures (for example as an email attachment).

              The best way to proceed is that of identifying in a very specific way only the information that needs to be shared, listing the documents in an attachment to the NDA, thereafter making them available in a format that leaves no doubt regarding their confidentiality, for example by marking them with a watermark or stamp “Confidential under NDA”. Furthermore, a good praxis is to provide access to the Confidential Information only through a secure way (such as a reserved cloud , accessible only through an individual user name and password that is given to authorized people).

              NDA – Prohibition from using the Confidential Information

              Often times through the standard NDA templates, the Receiving Party is only obliged to maintain the Confidential Information reserved, without being prohibited from its use which – especially in cases of competitor companies – may be more dangerous than divulging the information: imagine technology development or patents based on data acquired, or the use of lists of clients or other commercial information. To highlight and strengthen this obligation it would be more correct to name the document Non-Disclosure and Non-Use Agreement (“NDNUA”).

              NDA – Duration

              The function of the NDA is to protect the Confidential Information for the entire time during which it needs to be shared between the Parties. It is therefore important to clearly indicate the last moment the information will be used and – in the event that the Receiving Party is in possession of a copy of the Confidential Information – ensure that the Receiving Party returns or destroys the documents and shall maintain the Information reserved and shall refrain from using the Information for a few months (better years) following the termination of the NDA.

              Breach of the NDA

              Attempting to quantify the damages resulting from a breach of the confidentiality clause is generally very complex: it may therefore be useful to provide for a penalty clause, that establishes a certain amount for the damage deriving from a contractual non-fulfilment. To this effect it is important to consider that the estimate of the penalty shall be reasonable in relation to the damage assumed to derive from the breach of confidentiality, and that different types of penalties can be established according to different cases of non-fulfilment (for example, registration or counterfeit of a patent through the use of shared technical information, or contact with certain business partners).

              There is also another advantage inserting a penalty clause in the NDA: if during the negotiations the Receiving Party objects to the clause or requests it to be reduced, it may indicate a mental reservation of default, and in any case is symptomatic of a fear of having to pay this amount, which would have no reason to exist if the party intended abiding strictly to the contractual obligations.

              NDA – Litigation, jurisdiction and applicable law

              Even in this case there is an unfortunate practice, which is that of relegating this type of clause to the end of the agreement (concerning the so-called midnight clauses, to this effect you may refer to this post on  legalmondo) and thus not dedicate enough attention to its contents, which may lead to adopting clauses that are completely wrong (or worse still, null).

              In reality this is a very important provision, which leads to ensuring contractual enforcement and/or obtaining a judicial decision that may be executed in a rapid and effective way. There is no solution that applies to all cases and the individual  negotiation need to be considered: for example in an NDA with a Chinese counterpart it may be counterproductive to choose the Italian jurisdiction and apply Italian law, given that in the event of non-fulfilment it is usually necessary to take legal action and enforce the judicial or arbitral decision in China (even with interim – urgent measures). It would therefore be more opportune, to draft an NDA with an English/Chinese bilingual text and provide for an arbitration in China, applying Chinese law.

              NDA – Conclusion

              The NDA is a fundamental tool to protect confidential information, and this can be achieved only if it is well drafted, taking into consideration the specific case at hand: it is advisable to refrain from the “do-it-yourself” and seek legal advice from a lawyer who knows how to draw up an NDA bearing in mind all the characteristics of this type of contract  (type of negotiation, information to be shared, location of the parties and countries where the NDA will be executed).

              Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

              It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

              And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

              The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

              The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

              1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

              Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

              1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
              2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
              3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
              4. Costs are reasonable and known in advance.
              5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

              To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project

              El Código Civil y Comercial de la República Argentina (el “Código”) no contiene artículos específicos para los contratos de distribución. Por ello, al contrato de distribución se lo considera como un “contrato innominado”, el cual contiene, entre otras cosas, elementos de los contratos de compraventa, agencia y mandato. Por lo tanto, si el contrato de distribución no posee una regla específica para un caso particular, las partes deben aplicar por analogía los artículos de estos tres tipos de contratos (compraventa, agencia y mandato) como reglas standard hasta el punto de que sean aplicables en casa caso. Asimismo, el Artículo 1511 del Código establece que las reglas del Capítulo 18 (Contratos de Concesión) aplicarán para los Contratos de Distribución cuando corresponda.

              Forma

              El Código no requiere de ninguna forma en particular para celebrar este tipo de contratos. Sin embargo, comunmente estos contratos se realizan por escrito.

              Cláusulas Importantes

              Para todas las partes:

              1. a) Fuerza Mayor: considerando que en la Argentina tiende a existir un ambiente inestable para los negocios debido a razones políticas, las partes deben considerar la posibilidad de incluir en los contratos cláusulas de “cambios de legislación” o “acciones de gobierno” dentro de la definición de fuerza mayor.
              2. b) Seguro de los productos. Es importante que en caso de suceder algún siniestro con los productos, los mismos estén cubiertos para no perder todo el dinero de los mismos.
              3. c) Registración del producto.

              Para el proveedor:

              1. a) Pago (si es internacional, sin impuestos, cláusulas para recibir el monto total sin deducciones o retenciones).
              2. b) Moneda (en virtud de la inestabilidad del Peso Argentino, es importante establecer cláusulas de reajuste de precio o establecer el precio en Dólares Estadounidenses).
              3. c) Recall del Producto.
              4. d) Tiempo de entrega.
              5. e) Retrasos.
              6. f) Condiciones del stock.

              Para el distribuidor:

              1. a) Retornos.
              2. b) Compensación de clientela.
              3. c) Producto defectuoso.
              4. d) Muestras del producto.

              Incoterms

              En los contratos de distribución nacionales no es usual utilizar Incoterms. Sin embargo, en los contratos de distribución internacionales, es común utilizar los siguientes Incoterms:

              Para el transporte aereo: FCA (Free Carrier); para el transporte por barco: FOB(Free On Board).

              Responsabilidad sobre el Producto

              Conforme la Ley Nº 24.240 de Defensa del Consumidor, el consumidor tiene un plazo de 3 años para realizar un reclamo contra el distribudor y/o el proveedor, mientras que para otras partes de la cadena de comercialización, los cuales tiene una relación contractual directa con el distribuidor y/o proveedor (ej: minoristas que adquirieron los productos del distribuidor y/o un subcontratista del distribuidor), el plazo es de 10 años. En cualquier caso, los partes deben estar interesados en la posibilidad de establecer que el plazo de 3 años comience a contarse desde la fecha de vencimiento de los productos en lugar de la fecha de terminación del contrato (ej: un producto puede ser guardado y no vendido por un tiempo y por ende el plazo de 3 años retrasarse).

              Propiedad Intelectual

              El proveedor debe realizar y renovar la registración de las marcas de los productos en Argentina. En función de ello, es importante incluir una cláusula en el contrato que establezca que las marcas son de propiedad del proveedor y que el distribuidor únicamente puede usarlas en la medida que tenga autorización por parte del proveedor mientras se encuentre vigente el contrato. Asimismo, el distribuidor debe proteger las marcas del proveedor.

              Resolución

              Las Partes pueden acordar libremente como podrá resolverse el contrato. En caso de existir un cláusula de resolución sin causa, la misma debe tener un preaviso razonable para que la otra parte pueda conseguir otro distribuidor o enfrentar la pérdida del cliente, dependiendo quien ejerza la opción.

              Ley Aplicable y Jurisdicción

              Las partes pueden pactar la ley que consideren mejor para resolver cualqueir asunto del contrato. Asimismo, las partes también podrán elegir libremente que tribunal o arbitraje elegir dentro del país o en el extranjero.

              El autor de este post es Tomás García Navarro.

              President Erdogan made a presidential decree that mandatorily requires use of Turkish lira for transactions concluded between parties resident in Turkey. The Decree amending the Decree on Protecting the value of Turkish Lira, (The Decree) is published in the Official Gazette and came into force on 13th September 2018.

              The Decree orders use of Turkish Lira for purchase and sale of all kinds of goods, commodities, services and real estate. All kinds of lease and rental of vehicles and all kinds of goods and real estate must also be made by using Turkish Liras. The decree also stipulates that no reference to currency exchange tying a contract payment or value to foreign currency can be made and the all contracts between Turkish residents even if foreign owned must be based on Turkish Liras.

              Let’s see the changes introduced by the regulation point by point.

              No Use of Foreign Currency in domestic Contracts

              New currency policy states that all payments related to contracts between local parties i.e. Turkish Residents whether legal persons or real persons must be made in Turkish liras.

              Accordingly all real estate transactions must be made in Turkish liras and no reference can be made to foreign currencies.

              All Contracts Must be Amended within 30 days

              The Decree establishes also that all contracts between Turkish residents made before 13th September 2018 must be amended and the payments must be converted into Turkish liras from any foreign currency within 30 days from the publish date of The Decree (13th September 2018): this shall mean that all contracts based on foreign currencies must be amended within 14th October 2018.

              There is no reference to a currency exchange rate when amending contracts into Turkish Liras. The parties are free to agree on any currency rate when amending however this cannot be stipulated in the contract but only for negotiation purposed when drafting the amendment.

              The governmental projects which have been signed earlier should be coordinated with the related authority and adaption should be made in line with the new currency regime.

              Import and Export of Goods and Services

              The new decree does not impact an export or import relation, as long as one of the parties is not Turkish resident. However one must note that The Decree may have an impact on Turkish based subsidiaries of multinational companies trading with foreign currency.

              There is no limitation in bringing foreign currency into country.

              Sanctions

              New foreign currency policy does not address any criminal or administrative sanctions. New regulations should be expected to implement the practice of The Decree. Needless to say, if one of the parties of an existing contract based on foreign currency will be eager to take the matter to the civil courts if no amendment is made within 30 days and easily obtain a court decision for amendment.

              Conclusion

              This move is considered as one of the steps of measure step to support the ailing local currency.

              Slipping Turkish Liras has been an on-going concern for Turkey in last 6 months. The sudden drop of Turkish Liras exchange rate urged the government to find a quick cure to increase the value of Turkish liras or at least to maintain the status.

              Those days, some rough policies have been adopted by governments to safeguard the fragile Turkish Lira. The measures taken indeed prevented Turkish economy to accelerate and take off. With the new liberal look after 1983 elections many of these hard measures were lifted and the law on Protection of Turkish Liras was eased. The era before 1980s when there were hard policies applied to protect Turkish Lira was in a different world than today.

              The latest measure may or may not address an improvement but it is a fact that many foreign investors or local investors funded by foreign institutions will have to struggle due to the new regulations pushing them to amend their contracts into Turkish Liras from foreign currencies.

              Not what you would expect 

              When can you terminate, how should you terminate, and how much are you exposed?!

              The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.

              This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.

              However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.

              In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.

              Nevertheless, often the international corporation decides for various reasons (such as establishing an «in-house» operation» in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.

              What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?

              Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.

              Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.

              As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.

              The truth is the reasonability of the due notice varies from case to case!

              However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to «justify» avoiding a due notice period or adequate compensation.

              In this respect, in many cases simple «non-satisfaction» was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.

              There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.

              Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.

              Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.

              The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.

              In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.

              It is often the case – in practice – that an ongoing commercial relationship builds slowly over time through a series of sales agreements, without the parties ever signing an actual distribution agreement to set down their respective rights and responsibilities.

              At first blush this might appear to be a good thing: one can sidestep being bound, especially long-term, to the other party. But on closer scrutiny the solution becomes problematic, especially for anyone operating internationally.

              One of the key issues that arises when an international contractual arrangement is not in writing, is identifying the court with jurisdiction over any dispute arising therefrom. In the European Union, the issue is resolved by the provisions of Regulation 1215/2012 (“Brussels I recast”). Pursuant to Article 7 of the Regulation, as an alternative to the defendant’s courts, jurisdiction in a contractual dispute may lie with the court in the place of performance of the obligation in question. Next to this general rule are two criteria to identify the “place of performance”, differentiated according to the type of contract at issue. For a contract for goods, it is the place of delivery for the goods; in a contract for services, it is the place where the services are provided.   

              Thus, to identify the court with jurisdiction, it is crucial that a contract fall under one of these categories: goods or services.

              No doubt this distinction is quite simple in many circumstances. In the case of a distribution agreement, or of a commercial concession agreement, the issue may become thorny.

              The European Court of Justice has analysed this issue on a number of occasions, most recently in their judgement of 8 March 2018 (Case no. C-64/17) following the request for a preliminary ruling from a Portuguese Court of Appeal. The parties to the action were a Portuguese distributor, a company called Lusavouga, and a Belgian company called Saey Home & Garden, that produced articles for the home and garden, including a line of products branded “Barbecook”.

              Following Saey’s decision to break off the commercial relationship – notice of which was sent in an email dated 17 July 2014 – Lusavouga brought action in Portugal seeking compensation for the unexpected termination of the agreement, and goodwill indemnity. Saey raised a plea of lack of jurisdiction of the Portuguese court, citing their general conditions of sale (mentioned in their invoices) which required that a Court in Belgium be competent for dispute resolution.

              The facts thus presented two issues to be resolved in light of the Brussels I recast Regulation: deciding whether a jurisdiction clause in a vendor’s general terms and conditions pursuant to Art. 25 of the Regulation shall apply, and, if not, choosing the court with jurisdiction under Art. 7 of the Regulation.

              Shall a jurisdiction clause contained within a vendor’s general terms and conditions apply to a distribution relationship?

              The supplier company apparently considered their course of dealing with the Portuguese retailer nothing more than a concatenation of individual sales of goods, governed by their general terms and conditions. Consequently, they argued that any dispute arising from the relationship should be subject to the jurisdiction clause identifying Belgium as the court with jurisdiction under those terms and conditions.

              Thus, a determination was needed on whether, under these facts, there was a valid prorogation of jurisdiction under Article 25, paragraph 1 of Regulation 1215/2012.

              The Court of Justice has long opined that if the jurisdiction clause is included in the general contract conditions drafted by one of the parties, the contract signed by the other party must contain an express reference to those general conditions in order to ensure the real consent thereto by the parties (judgement of 14 December 1976, Estasis Salotti di Colzani, case no. 24/76; judgement of 16 March 1999, Castelletti, case no. C-159/97; judgement of 7 July 2016, Höszig, case no. C-225/15). Moreover, to be valid, the clause must involve a particular legal relationship (judgement of 20 April 2016, Profit Investment SIM, case no. C-366/13).

              In the instant case, the referring court found it self-evident that the legal relationship at bar was a commercial concession agreement entered into for the purpose of distributing Saey products in Spain, a contract that was not evidenced in writing.

              From this perspective, it is clear that the general conditions contained in the Saey invoices could have no bearing on the commercial concession agreement: assuming Lusavouga’s consent had been proven, the selection of Belgium as the forum would have applied if anything to the individual sales agreements, but not to those duties arising from the separate distribution agreement.

              What, then, would be the court with jurisdiction for the duties arising from the commercial concession agreement?

              Absent any jurisdiction clause, the issue would be decided under Art. 7, point 1 of Regulation 1215/2012, under which it becomes imperative to establish whether a contract is for goods or for services.

              The “provision of services” has been defined by the Court of Justice as an activity, not mere omissions, undertaken in return for remuneration (judgement of 23 April 2009, Falco, case no. C-533/07).

              With the judgements in Corman Collins of 19 December 2013 (case no. C-9/12), and Granarolo of 14 July 2016 (case no. C-196/15), the Court held that in a typical distribution agreement, the dealer renders a service, in that they are involved in increasing the distribution of supplier’s product, and receives in consideration therefor a competitive advantage, access to advertising platforms, know-how, or payment facilities. In light of such elements, the contract relationship should be deemed one for services. If on the other hand the commercial relationship is limited to a concatenation of agreements, each for the purpose of a delivery and pickup of merchandise, then what we have is not a typical distribution agreement, and the contractual relationship shall be construed as one for the sale of goods.

              Once the contract has been categorised as one for services, one must then determine “the place where, under the contract, the services are provided”. The Court specifies that such location shall be understood as the member state of the place of the main provision of services, as it follows from the provisions of the contract  or – as in the case at issue – the actual performance of the same. Only where it is impossible to identify such location shall the domicile of the party rendering the service be used.

              From the referring court’s description of the contractual relationship, and from the Court of Justice’s understanding of the distributor’s performance of services, it would be logical to find that the principal location for performance of services was Spain, where Lusavouga “was involved in increasing the distribution of products” of Saey.

              It is clear that neither the manufacturer nor the distributor would ever have intended such a result, and they might have avoided it being chosen for them by reducing their agreement in writing, including a jurisdiction clause therein.

              By the same token, viewed from the outside, the Portuguese judges’ apparent conviction that the situation was one of an actual dealership contract would leave ample room for debate. After all, a number of elements would lead to the opposite conclusion. However, even in terms of that aspect, the absence of a written contract left room for interpretation that might lead to unforeseen – and perhaps rather risky – consequences.

              In conclusion, the wisdom of setting down the terms and conditions of a sales distribution agreement in writing appears clear. This is not only because one can avoid those ambiguities we have described above, but also because it specifies other important clauses stipulated by the parties that should not be left to chance: exclusivity of area, if any, or with respect to specific sales channels, the contract period and termination notice, any duties to promote the product, control over end-user personal data, and the possibility of, and methods for, any online sales of products.

              Ignacio Alonso

              Áreas de práctica

              • Agencia
              • Derecho Societario
              • Contratos de distribución
              • Franquicia
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                Germany – Ban of price comparison engines and advertising on third-party platforms

                12 de abril de 2018

                • Alemania
                • Contratos de distribución
                • e-commerce

                On 1 January, the new Packaging Act (“Verpackungsgesetz”) will replace the existing Packaging Ordinance (“Verpackungsverordnung”). Non-compliance with the new rules may have very unpleasant consequences.

                For those who sell packaged goods to end consumers in Germany it is high noon: they have to adapt to the new packaging law, which comes into force on January 1, 2019.

                The main objective of the new law is that in the future all concerned parties will have to take responsibility and bear the costs of disposing their packaging. The legislator also wants to achieve the increase of the recycling rate of paper, plastic, metal or glass packaging, and to use as many readily recyclable materials as possible. Therefore, the fee that producers or distributors must pay for disposal will in future not only depend on the quantity and material type, but also more on the recyclability of the packaging.

                Who is affected by this law?

                Manufacturers, online dealers and distributors of packaged goods of all kinds.

                Affected are all so-called initial distributors of packaging, which typically end up at the private end consumer. These can be manufacturers, online dealers and distributors of packaged goods of all kinds, whether food, electrical appliances or furniture.

                All of them, if they place packaging on the market for the first time, must register with one of the dual systems already today and, depending on the quantity and material of the packaging waste, pay a participation fee to the German take-back system.

                It is new from next year on that they additionally have to register with the Central Agency Packaging Register and specify the amount of waste.

                This information will be publicly available. By doing so, the legislator wants to create transparency and ensure that all those who place «packaging» on the market fulfill their obligations.

                Also new is that the fees, which so far have been simply calculated according to quantity and type of material, should in future also depend on how well a material can be recycled.

                For example: Cardboard boxes, which usually consist of two-thirds of waste paper, are easily recyclable, as are aluminium cans, which can be reused to 100 percent. By contrast, the notorious coffee-to-go cups are not recyclable because they consist of a quasi-inseparable composite material.

                How exactly the gradations will look is not yet certain, as the dual systems still work on the implementation.

                Further innovations for beverage manufacturers and distributors

                The law contains several other changes that are particularly important for beverage manufacturers and distributors. The compulsory deposit for disposable containers will be extended to include a few types of beverages that were previously exempted, such as carbonated fruit and vegetable nectars. A new duty has been introduced for retailers, who must point out «with clearly visible signs» on disposable and reusable beverage packaging.As from 1st of January 2019 companies must also file the so-called Declaration of Compliance (“Vollstaendigkeitserklaerung”) with the Central Agency Packaging Register and not anymore with the respective local Chamber of Industry and Commerce.

                What is the Declaration of Compliance?

                A Declaration of Compliance is a verification concerning the volumes of sales packaging placed into the market by a manufacturer / distributor within one calendar year.

                The filing of the Declaration of Compliance, however, only affects larger manufacturers, since the de minimis limits are set quite high in this respect. For paper, cardboard or carton it is about 80 tons per year.

                Pre-registration is already possible as from September 2018. It is important to note, however, that every company involved in the system must perform the registration and data reporting «personally», meaning that this process may not be transferred to third parties.

                The respective database run by the Central Agency Packaging Register is called LUCID. Manufacturers, online dealers or initial distributors who preregister with LUCID will receive a provisional registration number, which will be sent to the Dual system with which they can sign a contract. There are currently nine companies offering this. Manufacturers who preregister in 2018 will automatically receive a registration confirmation from the Central Agency Packaging Register at the beginning of 2019. The registration including the indication of quantities is free and can be done online.

                The Central Agency Packaging Register is also responsible to monitor compliance with the regulations. However, at the end of the day, everyone can check the respective compliance as LUCID is a transparent register and open to everyone to search the register for specific manufacturers and brands.

                The law explains why this can have quite unpleasant consequences:

                In case the registration is omitted, there is automatically a ban on distribution of the packaging and there is a threat of fines to be imposed which may range up to 100.000 €! Due to the publicity of the register, agents not complying with the law may have to expect that their goods will be discontinued in the German trade.

                Still unclear issues

                The definition of packaging covered by this law is not quite clear. Transport packaging such as that used by a manufacturer for delivery to the dealer and disposed of there, for example, is not affected by the obligation to participate at the system and the new registration obligation. This packaging does not end up at the private end consumer. But what about wine boxes, for example? They are often only transport packaging, but some customers may take a whole box of their favorite wine with them. In addition, hotels and restaurants, such as those supplied by a retailer, are considered by law to be private end consumers.

                The author of this post is Olga Dimopoulou

                In a recent decision on the 24th of October 2018 (n°18-D-23), the French Competition Authority (Autorité de la Concurrence, aka AdlC) fined the Stihl company (leader in mechanized culture products) for his practices in his selective distribution network. Stihl managed to restrict the sale of its products by its authorized distributors on their own website and to prohibit them from marketing them on third-party platforms.

                The ruling is considered by the AdlC as having «vocation to clarify the framework applicable in France for the different sectors and products, beyond the sole sector of the mechanized culture».

                In this case the network implemented by the supplier was a selective distribution network. Therefore, AdlC’s position can only concern the implementation of a selective distribution network and is not applicable to an exclusive distribution network (see our Update Distribution/Competition, April 2018).

                1. The lawfulness of the selective distribution network

                The Authority follows the traditional analysis of validity of a selective distribution network. First, it highlights that selection of resellers was based on objective criteria such as qualitative nature, applied in a uniform manner and without any discrimination.

                Then, the Authority had to determine whether the qualitative criterion conditioning the lawfulness of the selective distribution system was fulfilled or not. The Authority has decided that the fact that products in question are of a delicate assembly and that some of them even present risks for safety of users, justifies setting up a network of selective distribution.

                1. The lawfulness of the ban on selling technical products on third-party platforms

                The decision of the AdlC was especially expected on this point because it had to take into account rulings rendered by the CJEU and then by the Paris Court of Appeal in the Coty cases ((CJUE 6/12/17, affaire 230/16; Cour d’appel de Paris, pôle 5, ch 4, 28 février 2018, n° 16/02263). The question was: the right of suppliers to prohibit their authorized distributors from distributing their products on third-party platforms is limited to luxury goods only (the Coty hypothesis) or could be extended to include others products? The hypothesis of this extension had already been addressed by other courts in Europe and also by the Advocate General before the CJEU (see our Update Distribution/Competition, December 2017) and then by the European Commission.

                In a nutshell the Authority extends the Coty case law to technical products whether they are dangerous or not.

                First of all, the Authority notes that «prohibition to sell on platforms contributes to preserving the safety of consumers and to guaranteeing the brand image and the quality of the products concerned».

                Then, the Authority checked whether this restriction did not go beyond what is necessary in regards to characteristics of products in question. It notes that in the case of third-party platforms, this restriction allows supplier to control that its distributors comply with requirements of distribution network.

                Finally, the AdlC checked whether this prohibition was not disproportionate, and in this case, noted that there is no disproportion in so far as distribution on third-party marketplaces is not a main marketing channel for mechanized culture products.

                This result (validation of the ban on the sale of products on third-party platforms) may allow many economic operators to believe legitimately that the scope of the Coty case law can be broad.

                1. Prohibition of restrictions on resale of products on distributors’ websites

                However the AdlC has refused to approve the clause restricting resale of products by distributors on their own websites.

                In this case, if customers of the distributors could place an order online, they had to, for products with a certain dangerous nature (such as chainsaw, pruner, brushcutter, etc.) either come to withdraw the product at a (physical) sell point owned by distributor or to be delivered by the distributor. Distributor had indeed underwritten a complete obligation to «put in hand» the machine, including the oral communication of usage instructions and a demonstration.

                The AdlC decided that this obligation to put in hand was actually to cancel advantages attached to Internet selling and thus to prohibit purely and simply Internet selling. According to the Authority, this restriction went beyond what is necessary to preserve consumer’s health.

                The AdlC had to determine whether this restriction was a restriction by object or effect. According to the Authority, the restriction at stake reduced the ability of distributors to sell products outside their usual customers catchment area, and as such should be characterized as a competitive restriction by object.

                On possible exemptions issues, the Authority first rejects the possibility of category exemption within the meaning of the EU Block Exemption Regulation No 330/2010, the anti-competitive practice being comparable to a restriction characterized by passive sales within the meaning of Article 4, para. (c). Possibility of an individual exemption was also rejected by the Authority after examining any efficiency gains related to this «put in hand» obligation.

                The Authority could have taken advantage of this particular case, to refine the Pierre Fabre / Bang & Olufsen case law and validate and update sales restrictions on the Internet when the proper nature or quality of products justifies such a restriction.

                In summary, the marketing of products involving high technicality or which tend to be dangerous by using it:

                • justifies the implementation of a selective distribution network;
                • may be prohibited on third party platforms (if the selective distribution network is considered lawful);
                • could not be restricted on the websites of authorized distributors of a lawful selective network, for lack of «efficiency gain» in favor of consumers, according to a very (too?) strict position of the AdlC.

                On this last point, it will probably be necessary to wait for a clearer solution given by the Court of Appeal of Paris (in front of which a recourse is now pending) or the Court of Cassation.

                Very frequently, different business settings present the opportunity to sign a Non-Disclosure Agreement (“NDA”) and a Memorandum of Understanding (“MoU”) or Letter of Intent (“LoI”), so much so that these three acronyms – NDA, MoU and Lol – are now commonly used, particularly throughout international negotiations.

                However, often times, these contracts are used in an improper way and with different purposes than those for which they were established in international commercial praxis, with the result that they are either not useful because they do not effectively protect the parties’ interests, or are counterproductive.

                We shall start by taking a look at the characteristics of the Non-Disclosure Agreement – NDA – and how it should be used.

                What is a NDA?

                The NDA is an agreement whose function is to protect the confidential information that the parties (generally identified, respectively as the “Disclosing Party” and the “Receiving Party”) intend sharing, in different possible scenarios: forwarding of information for a preliminary due diligence relating to an investment, the evaluation of commercial data for a distribution contract, technical specifications related to a certain product that is subject of transfer of technology etc.

                The first step of the negotiations, in fact, often requires that different types of information whether technical, financial or commercial, are made available by one or both parties, and the need for this information to remain confidential (hereinafter the “Confidential Information”) during and after the conclusion of the negotiations.

                NDA – Who are the parties?

                Right from the recitals of the agreement, it is very important to correctly identify the parties obliged to safeguard the information and maintain its confidentiality, especially when group companies are involved, and where the interlocutors may be many and located in different countries. In such cases, it is advisable to oblige the Receiving Party to guarantee confidentiality by all the companies by means of a specific clause. It is also important that the agreement accurately indicates the people belonging to the Receiving Party’s organization (such as: employees, technical consultants, experts, collaborators, etc.) who have a right to access the information, if possible by signing a confidentiality agreement by all the people involved.

                NDA – What is Confidential Information?

                The use of recycled NDA templates, found on forms or proposed by the counterparty is certainly not a recommended practice, but unfortunately one that is very widespread. These templates are very often generic and include broad definitions of Confidential Information as well as very detailed lists which actually include all contents of a business activity, often including areas that are not applicable to the object of the activity being negotiated, or information that is actually not reserved.

                The problem regarding these templates is that it is difficult, ex post, to verify whether certain information  would have been included in the Confidential Information, for example either because it would be difficult to determine whether the Receiving Party would have already been in possession before the signing of the NDA, or because the information would not have been expressly mentioned in a clause that contains a very detailed list, but which does not include the individual piece of information that is of interest, or lastly because after the signing of the NDA, the Confidential Information would have been shared using non-secure and non-traceable procedures (for example as an email attachment).

                The best way to proceed is that of identifying in a very specific way only the information that needs to be shared, listing the documents in an attachment to the NDA, thereafter making them available in a format that leaves no doubt regarding their confidentiality, for example by marking them with a watermark or stamp “Confidential under NDA”. Furthermore, a good praxis is to provide access to the Confidential Information only through a secure way (such as a reserved cloud , accessible only through an individual user name and password that is given to authorized people).

                NDA – Prohibition from using the Confidential Information

                Often times through the standard NDA templates, the Receiving Party is only obliged to maintain the Confidential Information reserved, without being prohibited from its use which – especially in cases of competitor companies – may be more dangerous than divulging the information: imagine technology development or patents based on data acquired, or the use of lists of clients or other commercial information. To highlight and strengthen this obligation it would be more correct to name the document Non-Disclosure and Non-Use Agreement (“NDNUA”).

                NDA – Duration

                The function of the NDA is to protect the Confidential Information for the entire time during which it needs to be shared between the Parties. It is therefore important to clearly indicate the last moment the information will be used and – in the event that the Receiving Party is in possession of a copy of the Confidential Information – ensure that the Receiving Party returns or destroys the documents and shall maintain the Information reserved and shall refrain from using the Information for a few months (better years) following the termination of the NDA.

                Breach of the NDA

                Attempting to quantify the damages resulting from a breach of the confidentiality clause is generally very complex: it may therefore be useful to provide for a penalty clause, that establishes a certain amount for the damage deriving from a contractual non-fulfilment. To this effect it is important to consider that the estimate of the penalty shall be reasonable in relation to the damage assumed to derive from the breach of confidentiality, and that different types of penalties can be established according to different cases of non-fulfilment (for example, registration or counterfeit of a patent through the use of shared technical information, or contact with certain business partners).

                There is also another advantage inserting a penalty clause in the NDA: if during the negotiations the Receiving Party objects to the clause or requests it to be reduced, it may indicate a mental reservation of default, and in any case is symptomatic of a fear of having to pay this amount, which would have no reason to exist if the party intended abiding strictly to the contractual obligations.

                NDA – Litigation, jurisdiction and applicable law

                Even in this case there is an unfortunate practice, which is that of relegating this type of clause to the end of the agreement (concerning the so-called midnight clauses, to this effect you may refer to this post on  legalmondo) and thus not dedicate enough attention to its contents, which may lead to adopting clauses that are completely wrong (or worse still, null).

                In reality this is a very important provision, which leads to ensuring contractual enforcement and/or obtaining a judicial decision that may be executed in a rapid and effective way. There is no solution that applies to all cases and the individual  negotiation need to be considered: for example in an NDA with a Chinese counterpart it may be counterproductive to choose the Italian jurisdiction and apply Italian law, given that in the event of non-fulfilment it is usually necessary to take legal action and enforce the judicial or arbitral decision in China (even with interim – urgent measures). It would therefore be more opportune, to draft an NDA with an English/Chinese bilingual text and provide for an arbitration in China, applying Chinese law.

                NDA – Conclusion

                The NDA is a fundamental tool to protect confidential information, and this can be achieved only if it is well drafted, taking into consideration the specific case at hand: it is advisable to refrain from the “do-it-yourself” and seek legal advice from a lawyer who knows how to draw up an NDA bearing in mind all the characteristics of this type of contract  (type of negotiation, information to be shared, location of the parties and countries where the NDA will be executed).

                Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

                It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

                And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

                The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

                The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

                1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

                Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

                1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
                2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
                3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
                4. Costs are reasonable and known in advance.
                5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

                To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project

                El Código Civil y Comercial de la República Argentina (el “Código”) no contiene artículos específicos para los contratos de distribución. Por ello, al contrato de distribución se lo considera como un “contrato innominado”, el cual contiene, entre otras cosas, elementos de los contratos de compraventa, agencia y mandato. Por lo tanto, si el contrato de distribución no posee una regla específica para un caso particular, las partes deben aplicar por analogía los artículos de estos tres tipos de contratos (compraventa, agencia y mandato) como reglas standard hasta el punto de que sean aplicables en casa caso. Asimismo, el Artículo 1511 del Código establece que las reglas del Capítulo 18 (Contratos de Concesión) aplicarán para los Contratos de Distribución cuando corresponda.

                Forma

                El Código no requiere de ninguna forma en particular para celebrar este tipo de contratos. Sin embargo, comunmente estos contratos se realizan por escrito.

                Cláusulas Importantes

                Para todas las partes:

                1. a) Fuerza Mayor: considerando que en la Argentina tiende a existir un ambiente inestable para los negocios debido a razones políticas, las partes deben considerar la posibilidad de incluir en los contratos cláusulas de “cambios de legislación” o “acciones de gobierno” dentro de la definición de fuerza mayor.
                2. b) Seguro de los productos. Es importante que en caso de suceder algún siniestro con los productos, los mismos estén cubiertos para no perder todo el dinero de los mismos.
                3. c) Registración del producto.

                Para el proveedor:

                1. a) Pago (si es internacional, sin impuestos, cláusulas para recibir el monto total sin deducciones o retenciones).
                2. b) Moneda (en virtud de la inestabilidad del Peso Argentino, es importante establecer cláusulas de reajuste de precio o establecer el precio en Dólares Estadounidenses).
                3. c) Recall del Producto.
                4. d) Tiempo de entrega.
                5. e) Retrasos.
                6. f) Condiciones del stock.

                Para el distribuidor:

                1. a) Retornos.
                2. b) Compensación de clientela.
                3. c) Producto defectuoso.
                4. d) Muestras del producto.

                Incoterms

                En los contratos de distribución nacionales no es usual utilizar Incoterms. Sin embargo, en los contratos de distribución internacionales, es común utilizar los siguientes Incoterms:

                Para el transporte aereo: FCA (Free Carrier); para el transporte por barco: FOB(Free On Board).

                Responsabilidad sobre el Producto

                Conforme la Ley Nº 24.240 de Defensa del Consumidor, el consumidor tiene un plazo de 3 años para realizar un reclamo contra el distribudor y/o el proveedor, mientras que para otras partes de la cadena de comercialización, los cuales tiene una relación contractual directa con el distribuidor y/o proveedor (ej: minoristas que adquirieron los productos del distribuidor y/o un subcontratista del distribuidor), el plazo es de 10 años. En cualquier caso, los partes deben estar interesados en la posibilidad de establecer que el plazo de 3 años comience a contarse desde la fecha de vencimiento de los productos en lugar de la fecha de terminación del contrato (ej: un producto puede ser guardado y no vendido por un tiempo y por ende el plazo de 3 años retrasarse).

                Propiedad Intelectual

                El proveedor debe realizar y renovar la registración de las marcas de los productos en Argentina. En función de ello, es importante incluir una cláusula en el contrato que establezca que las marcas son de propiedad del proveedor y que el distribuidor únicamente puede usarlas en la medida que tenga autorización por parte del proveedor mientras se encuentre vigente el contrato. Asimismo, el distribuidor debe proteger las marcas del proveedor.

                Resolución

                Las Partes pueden acordar libremente como podrá resolverse el contrato. En caso de existir un cláusula de resolución sin causa, la misma debe tener un preaviso razonable para que la otra parte pueda conseguir otro distribuidor o enfrentar la pérdida del cliente, dependiendo quien ejerza la opción.

                Ley Aplicable y Jurisdicción

                Las partes pueden pactar la ley que consideren mejor para resolver cualqueir asunto del contrato. Asimismo, las partes también podrán elegir libremente que tribunal o arbitraje elegir dentro del país o en el extranjero.

                El autor de este post es Tomás García Navarro.

                President Erdogan made a presidential decree that mandatorily requires use of Turkish lira for transactions concluded between parties resident in Turkey. The Decree amending the Decree on Protecting the value of Turkish Lira, (The Decree) is published in the Official Gazette and came into force on 13th September 2018.

                The Decree orders use of Turkish Lira for purchase and sale of all kinds of goods, commodities, services and real estate. All kinds of lease and rental of vehicles and all kinds of goods and real estate must also be made by using Turkish Liras. The decree also stipulates that no reference to currency exchange tying a contract payment or value to foreign currency can be made and the all contracts between Turkish residents even if foreign owned must be based on Turkish Liras.

                Let’s see the changes introduced by the regulation point by point.

                No Use of Foreign Currency in domestic Contracts

                New currency policy states that all payments related to contracts between local parties i.e. Turkish Residents whether legal persons or real persons must be made in Turkish liras.

                Accordingly all real estate transactions must be made in Turkish liras and no reference can be made to foreign currencies.

                All Contracts Must be Amended within 30 days

                The Decree establishes also that all contracts between Turkish residents made before 13th September 2018 must be amended and the payments must be converted into Turkish liras from any foreign currency within 30 days from the publish date of The Decree (13th September 2018): this shall mean that all contracts based on foreign currencies must be amended within 14th October 2018.

                There is no reference to a currency exchange rate when amending contracts into Turkish Liras. The parties are free to agree on any currency rate when amending however this cannot be stipulated in the contract but only for negotiation purposed when drafting the amendment.

                The governmental projects which have been signed earlier should be coordinated with the related authority and adaption should be made in line with the new currency regime.

                Import and Export of Goods and Services

                The new decree does not impact an export or import relation, as long as one of the parties is not Turkish resident. However one must note that The Decree may have an impact on Turkish based subsidiaries of multinational companies trading with foreign currency.

                There is no limitation in bringing foreign currency into country.

                Sanctions

                New foreign currency policy does not address any criminal or administrative sanctions. New regulations should be expected to implement the practice of The Decree. Needless to say, if one of the parties of an existing contract based on foreign currency will be eager to take the matter to the civil courts if no amendment is made within 30 days and easily obtain a court decision for amendment.

                Conclusion

                This move is considered as one of the steps of measure step to support the ailing local currency.

                Slipping Turkish Liras has been an on-going concern for Turkey in last 6 months. The sudden drop of Turkish Liras exchange rate urged the government to find a quick cure to increase the value of Turkish liras or at least to maintain the status.

                Those days, some rough policies have been adopted by governments to safeguard the fragile Turkish Lira. The measures taken indeed prevented Turkish economy to accelerate and take off. With the new liberal look after 1983 elections many of these hard measures were lifted and the law on Protection of Turkish Liras was eased. The era before 1980s when there were hard policies applied to protect Turkish Lira was in a different world than today.

                The latest measure may or may not address an improvement but it is a fact that many foreign investors or local investors funded by foreign institutions will have to struggle due to the new regulations pushing them to amend their contracts into Turkish Liras from foreign currencies.

                Not what you would expect 

                When can you terminate, how should you terminate, and how much are you exposed?!

                The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.

                This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.

                However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.

                In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.

                Nevertheless, often the international corporation decides for various reasons (such as establishing an «in-house» operation» in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.

                What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?

                Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.

                Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.

                As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.

                The truth is the reasonability of the due notice varies from case to case!

                However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to «justify» avoiding a due notice period or adequate compensation.

                In this respect, in many cases simple «non-satisfaction» was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.

                There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.

                Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.

                Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.

                The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.

                In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.

                It is often the case – in practice – that an ongoing commercial relationship builds slowly over time through a series of sales agreements, without the parties ever signing an actual distribution agreement to set down their respective rights and responsibilities.

                At first blush this might appear to be a good thing: one can sidestep being bound, especially long-term, to the other party. But on closer scrutiny the solution becomes problematic, especially for anyone operating internationally.

                One of the key issues that arises when an international contractual arrangement is not in writing, is identifying the court with jurisdiction over any dispute arising therefrom. In the European Union, the issue is resolved by the provisions of Regulation 1215/2012 (“Brussels I recast”). Pursuant to Article 7 of the Regulation, as an alternative to the defendant’s courts, jurisdiction in a contractual dispute may lie with the court in the place of performance of the obligation in question. Next to this general rule are two criteria to identify the “place of performance”, differentiated according to the type of contract at issue. For a contract for goods, it is the place of delivery for the goods; in a contract for services, it is the place where the services are provided.   

                Thus, to identify the court with jurisdiction, it is crucial that a contract fall under one of these categories: goods or services.

                No doubt this distinction is quite simple in many circumstances. In the case of a distribution agreement, or of a commercial concession agreement, the issue may become thorny.

                The European Court of Justice has analysed this issue on a number of occasions, most recently in their judgement of 8 March 2018 (Case no. C-64/17) following the request for a preliminary ruling from a Portuguese Court of Appeal. The parties to the action were a Portuguese distributor, a company called Lusavouga, and a Belgian company called Saey Home & Garden, that produced articles for the home and garden, including a line of products branded “Barbecook”.

                Following Saey’s decision to break off the commercial relationship – notice of which was sent in an email dated 17 July 2014 – Lusavouga brought action in Portugal seeking compensation for the unexpected termination of the agreement, and goodwill indemnity. Saey raised a plea of lack of jurisdiction of the Portuguese court, citing their general conditions of sale (mentioned in their invoices) which required that a Court in Belgium be competent for dispute resolution.

                The facts thus presented two issues to be resolved in light of the Brussels I recast Regulation: deciding whether a jurisdiction clause in a vendor’s general terms and conditions pursuant to Art. 25 of the Regulation shall apply, and, if not, choosing the court with jurisdiction under Art. 7 of the Regulation.

                Shall a jurisdiction clause contained within a vendor’s general terms and conditions apply to a distribution relationship?

                The supplier company apparently considered their course of dealing with the Portuguese retailer nothing more than a concatenation of individual sales of goods, governed by their general terms and conditions. Consequently, they argued that any dispute arising from the relationship should be subject to the jurisdiction clause identifying Belgium as the court with jurisdiction under those terms and conditions.

                Thus, a determination was needed on whether, under these facts, there was a valid prorogation of jurisdiction under Article 25, paragraph 1 of Regulation 1215/2012.

                The Court of Justice has long opined that if the jurisdiction clause is included in the general contract conditions drafted by one of the parties, the contract signed by the other party must contain an express reference to those general conditions in order to ensure the real consent thereto by the parties (judgement of 14 December 1976, Estasis Salotti di Colzani, case no. 24/76; judgement of 16 March 1999, Castelletti, case no. C-159/97; judgement of 7 July 2016, Höszig, case no. C-225/15). Moreover, to be valid, the clause must involve a particular legal relationship (judgement of 20 April 2016, Profit Investment SIM, case no. C-366/13).

                In the instant case, the referring court found it self-evident that the legal relationship at bar was a commercial concession agreement entered into for the purpose of distributing Saey products in Spain, a contract that was not evidenced in writing.

                From this perspective, it is clear that the general conditions contained in the Saey invoices could have no bearing on the commercial concession agreement: assuming Lusavouga’s consent had been proven, the selection of Belgium as the forum would have applied if anything to the individual sales agreements, but not to those duties arising from the separate distribution agreement.

                What, then, would be the court with jurisdiction for the duties arising from the commercial concession agreement?

                Absent any jurisdiction clause, the issue would be decided under Art. 7, point 1 of Regulation 1215/2012, under which it becomes imperative to establish whether a contract is for goods or for services.

                The “provision of services” has been defined by the Court of Justice as an activity, not mere omissions, undertaken in return for remuneration (judgement of 23 April 2009, Falco, case no. C-533/07).

                With the judgements in Corman Collins of 19 December 2013 (case no. C-9/12), and Granarolo of 14 July 2016 (case no. C-196/15), the Court held that in a typical distribution agreement, the dealer renders a service, in that they are involved in increasing the distribution of supplier’s product, and receives in consideration therefor a competitive advantage, access to advertising platforms, know-how, or payment facilities. In light of such elements, the contract relationship should be deemed one for services. If on the other hand the commercial relationship is limited to a concatenation of agreements, each for the purpose of a delivery and pickup of merchandise, then what we have is not a typical distribution agreement, and the contractual relationship shall be construed as one for the sale of goods.

                Once the contract has been categorised as one for services, one must then determine “the place where, under the contract, the services are provided”. The Court specifies that such location shall be understood as the member state of the place of the main provision of services, as it follows from the provisions of the contract  or – as in the case at issue – the actual performance of the same. Only where it is impossible to identify such location shall the domicile of the party rendering the service be used.

                From the referring court’s description of the contractual relationship, and from the Court of Justice’s understanding of the distributor’s performance of services, it would be logical to find that the principal location for performance of services was Spain, where Lusavouga “was involved in increasing the distribution of products” of Saey.

                It is clear that neither the manufacturer nor the distributor would ever have intended such a result, and they might have avoided it being chosen for them by reducing their agreement in writing, including a jurisdiction clause therein.

                By the same token, viewed from the outside, the Portuguese judges’ apparent conviction that the situation was one of an actual dealership contract would leave ample room for debate. After all, a number of elements would lead to the opposite conclusion. However, even in terms of that aspect, the absence of a written contract left room for interpretation that might lead to unforeseen – and perhaps rather risky – consequences.

                In conclusion, the wisdom of setting down the terms and conditions of a sales distribution agreement in writing appears clear. This is not only because one can avoid those ambiguities we have described above, but also because it specifies other important clauses stipulated by the parties that should not be left to chance: exclusivity of area, if any, or with respect to specific sales channels, the contract period and termination notice, any duties to promote the product, control over end-user personal data, and the possibility of, and methods for, any online sales of products.

                Benedikt Rohrssen

                Áreas de práctica

                • Agencia
                • Contratos de distribución
                • e-commerce
                • Franquicia
                • Inversiones
                Contáctanos Benedikt

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