Argentina – Distribution Agreements

2018年9月25日

  • 阿根廷
  • 分销协议

“Luxury goods justify online sales bans” on third party platforms – as stated in the press release no. 30/2018 of the Higher Regional Court of Frankfurt of July 12, 2018. After the long-awaited Coty-ruling of the ECJ (see the article of December 2017, https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/), the Higher Regional Court of Frankfurt has now applied the ECJ’s guidelines to Coty’s ban of sales via third party platforms and declared it effective – which was actually expected (I). Other high-quality goods – also outside the luxury segment – can justify platforms bans as well – at least this was decided by the Court of Appeal of Hamburg with regard to an eBay ban (II.). The article ends with some practical conclusions (III.).

Luxury products justify platform bans

According to the judgment of the Frankfurt Court of Appeal, Coty can prohibit the distributor from selling its products via third party platforms. Based on Coty’s wording in the selective distribution agreement, however, any distributor is free to establish advertising cooperations with third party platforms, where customers are redirected to the distributor’s own online shop. According to the judgment, the online marketplace ban is already admissible under the EU Vertical Block Exemption Regulation, since it does not constitute a hardcore restriction. The distribution ban could possibly even be exempted from the cartel prohibition, in the field of selective distribution; in this case, it would only be doubtful whether the prohibition of all “sales cooperation with a third party platform, outwardly recognisable from others, regardless of its concrete structure, would be a reasonable mean for the intended aim” (translated text from the original German version), i.e. whether it would be proportionate or whether there would be other means, less interfering with the dealer’s competitiveness. This question was left open by the Court.

Also other high-quality goods may allow platform bans

The case decided by the Hamburg Higher Regional Court (decision of March 22, 2018, file no. 3 U 250/16) concerns a qualitative selective distribution system for food supplements and cosmetics, which runs via the so-called network marketing, as well as via internet. The distribution guidelines contain, among other things, specific indications regarding the distributor’s website, the contact possibilities for customers in accordance with the “principle of personal sales of goods” (since the distribution system aims to sell the product tailored to the customers’ personal needs based on personal advice), as well as the quality of information and the product presentation. The “distribution … via eBay and comparable e-commerce platforms” is expressly prohibited, as it does not meet the quality requirements, at least not “according to the current state” (translated text from the original German version).

The Court of First Instance considered the platform ban to be admissible (District Court of Hamburg, judgment of November 4, 2016, Case No. 315 O 396/15) – which has now been confirmed by the Higher Regional Court of Hamburg. This is because qualitative selective distribution systems are not only admissible for luxury goods and high-technology goods, but also for (other) high-quality goods, “if the goods sold are high-quality and the distribution is combined with parallel customer consulting and support services, with the aim, among other things, of illustrating to the customer an overall sophisticated, high-quality and upscale end product and building up or maintaining a specific product image” (translated text from the original German version).

Within such a selective distribution system for the distribution of food supplements and cosmetics, it could then be admissible “to prohibit the distribution partners, by means of suitable company guidelines, from selling those goods via a specific online sales platform, in order to preserve the product image and the related practice of customer-binding support, as well as to prevent product- and image-damaging business practices of single distribution partners as occurred and consequently pursued in the past” (translated text from the original German version).

The peculiarity here was that they were not “pure prestige products” and, moreover, the Hamburg Higher Regional Court did not limit itself to the – in view of the market shares readily feasible – verification that the platform under Article 2 of the Vertical Block Exemption Regulation was admissible. Rather, the Court vividly and precisely declined the so-called Metro criteria.

Practical conclusions

  1. The Internet remains a growth driver for consumer goods, as also the market data from the German Trade Association confirm: “E-commerce remains a growth driver“.
  2. At the same time, brand manufacturers in particular want growth to be regulated according to the rules of their distribution system and to their requirements. These include, especially for luxury and technically sophisticated products, as well as other products requiring intensive assistance, strict specifications regarding brand identity and advertising appearance (specifications regarding brick store clauses, marketplace bans) and the services to be offered (e.g. chat and / or hotline with information on availability).
  3. Manufacturers should check whether their platform bans comply with ECJ’s requirements or if they wish to impose platform bans – in selective, exclusive, franchise and open distribution.
  4. Who wants to take as little risk as possible, should remain cautious with platform bans outside the selective distribution of luxury goods. In its first reaction, also the Federal Cartel Authority (BKartA, short for “Bundeskartellamt”) declared that the Coty-ruling should apply exclusively to original luxury products: “#Brand manufacturers still have no carte blanche on #platform bans. First assessment: “Limited impact on our practice” (BKartA on Twitter, December 6, 2017). Nevertheless, the European Commission has now spoken against this: in its Competition Policy Brief of April 2018 (“EU competition rules and marketplace bans: Where do we stand after the Coty judgment?), the European Commission states – rather incidentally – that the argumentation of the ECJ in the Coty case should also apply regardless of the luxury character of the distributed products:

„The arguments provided by the Court are valid irrespective of the product category concerned (i.e. luxury goods in the case at hand) and are equally applicable to non-luxury products. Whether a platform ban has the object of restricting the territory into which, or the customers to whom the distributor can sell the products or whether it limits the distributor’s passive sales can logically not depend on the nature of the product concerned.“

In fact, the ECJ has broadly defined “luxury goods” in its judgment: namely as goods whose quality is “not just the result of their material characteristics” but of intangible values – which is usually the case for branded goods (see the Coty-judgment of the ECJ of December 6, 2017, para. 25 and, with regard to “quality goods”, the conclusion of the EU Advocate General of July 26, 2017, para. 92). Furthermore, the ECJ only requests that the goods be bought “also” because of their prestige character, not “alone” or “above all” because of it. In conclusion, a lot of aspects suggest that all brand manufacturers can include platform bans in their distribution agreements – at least in case of market shares up to max. 30%.

  1. Those who are not afraid of confrontations with dealers and antitrust authorities can definitely impose platform bans outside the selective distribution of luxury goods as well – or increasingly rely on premium products and luxury – such as at the perfumery chain Douglas (see the Süddeutsche Zeitung of March 8, 2018, p. 15: “Active and unconventional, Tina Müller ends discounts on Douglas and aims at luxury“).
  2. To ensure consistent quality of sales, specific quality targets are recommended, especially for online sales. The list of possible quality targets is very long. The specifications that have proven to be best practice concern in particular:

– the positioning as a retailer (platform, product range, communication)

– the design of the website (quality, look & feel, etc.)

– the content and product offer of the website,

– the processing of online purchases,

– the consulting and customer service, as well as

– the advertisement.

  1. It is also essential to note that manufacturers are not allowed to totally prohibit distributors from selling online; nor are sales requirements allowed to amount to such a total ban – as the Courts now see in the case of Ascis’ ban of price comparison engines (to this regard, see the following article from April 2018: https://www.legalmondo.com/2018/04/germany-ban-of-price-comparison-engines-and-advertising-on-third-party-platforms/).
  2. Further details can be found in German in the following Law Journals:

– Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisüberblick und Folgen des „Coty“-Urteils des EuGH, in: GRUR-Prax 2018, 39-41;

– Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattform-verboten nach dem EuGH-Urteil Coty, in: DB 2018, 300-306;

– Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchma-schinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 120-123;

– Rohrßen, Internetvertrieb nach Coty – Von Markenware, Beauty und Luxus: Plattformverbote, Preisvergleichsmaschinen und Geoblocking, in: ZVertriebsR 2018, 277-285.

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.

不同的商业环境经常提供签署“保密协议”（“NDA”）,“谅解备忘录”（“MoU”）或“意向书”（“LoI”）的机会。以至于这三个缩写词 （NDA，MoU和LoI）变得司空见惯，特别是在整个国际谈判中。

但是，这种协议经常被不恰当地使用，目的与国际商业惯例中订立的合同不同。由此这种协议没有用，因为它们不会有效地保护当事方的利益，甚至是适得其反。

我们将首先看一看“保密协议”（NDA）的特征以及如何使用它。

NDA是什么?

NDA是一种协议，其作用是保护当事人（通常称为“披露方”和“接受方”）希望彼此分享的保密信息，在不同情况下有:为与投资有关的初步尽职调查转发信息，为分销合同评估商业数据，与技术转让对象的特定产品有关的技术规范等。

事实上，谈判的第一步通常要求由一方或双方提供不同类型的，技术、财务或商业的信息，这些信息（以下称“保密信息”）在谈判结束期间和谈判之后必须保密。

当事人是谁?

从协议前提来看，正确识别有义务保护信息并保持其保密性的当事人非常重要，特别是在涉及集团公司、对话方可能较多且位于不同国家的情况下。在这种情况下，建议接受方通过具体条款保证所有公司的保密性。同样重要的是，该协议应准确地指明属于接受方组织的有权获得信息的人员（如：雇员、技术顾问、专家、合作者等），如有可能，应由所有参与人员签署保密协议。

什么是保密信息？

使用回收的NDA模板，可以在表单上找到，也可以由对应方提出，这当然不是一种推荐的做法，但不幸的是，这种做法非常普遍。这些模板常常是通用的，包括对保密信息的广泛定义和非常详细的列表，实际上包括了一项商业活动的所有内容，通常包括与交易活动无关的领域或非保密信息。

这些模板的问题是事后很难检查保密信息中是否包含的某些细节。例如因为在NDA签署之前不知道是否接受方已经拥有信息，或因信息没有在包含非常详细的清单的条款中明确提及，该清单不包括令人感兴趣的个别信息，或因在NDA签署之后信息以非保密且不可追踪的方式传输（例如，作为电子邮件的附件）。

最好的方法是以非常具体的方式指明需要共享的信息，将文件列在NDA的附件中，然后使文件以保密的形式提供，例如通过水印或者标记“NDA下的机密”。此外，最好是以安全的方式提供对保密信息的访问（例如只能通过分配给授权人员的个人用户名和密码登录访问在云中或在披露方服务器上受保护的区域）。

禁止使用保密信息

通常NDA模型只要求接收方保持信息的保密性，而不禁止其使用。这可能比披露更危险，特别是在双方为竞争公司的情况下：比如基于所获得数据的技术或专利的发展，或者客户名单或其他商业信息的使用。为了强调和加强这一义务，将文件命名为“保密和非使用协议”（“NDNUA”）更为正确。

期间

NDA的作用是在整个协议期间保护双方之间共享保密信息。因此，必须明确说明最后使用该信息的时间，并且如果接受方拥有保密信息的副本，确定归还或销毁文件，在保密协议结束后几个月（多年更好）保持。

不履行

通常量化因违反保密义务而产生的损害非常复杂。因此，规定惩罚条款可能是有用的，该条款预先规定了违约所造成的损害额。为此，重要的是考虑到对于因违反保密规定而造成的损害，惩罚的量化必须是合理的，并可根据违约的不同情况确定不同类型的惩罚（例如，使用共享技术信息注册或假冒专利，或与某些业务合作伙伴联系）。

在NDA中写入一个惩罚条款还有另外的优势:如果在谈判期间接受方对该条款提出异议或请求减少该条款，则该条款可表明对违约的心理保留，而且无论如何，这表明对支付该金额的忧虑，如果接受方打算严格履行合同义务，该忧虑就没有理由存在。

诉讼，管辖权及适用法律

即使在这种情况下，经常有不利好的做法，就是将这条款置于协议末尾（关于所谓的午夜条款，请参考legalmondo），因此对其内容没有给予足够的重视，这可能导致采用错误的（或无效的）条款。

实际上，这是一项非常重要的条款，因为其可以确保合同执行和/或获得快速有效执行的司法判决。没有一个适用于所有情况的解决办法，需要考虑谈判的个别具体规定:例如，在与中国对应方签订的保密协议中，选择意大利司法管辖并适用意大利法律可能会适得其反，因为有不履行的情况下，通常需要在中国迅速采取行动（甚至紧急采取行动）。因此，更适当的做法是，用中英双语草拟NDA，并规定在中国进行仲裁，适用中国法律。

结论

建议不要“自己动手”，而是寻求懂得如何起草NDA和同时考虑到案件的所有特点（谈判类型、拟分享的信息、当事人所在地和将执行NDA的国家）的律师的法律意见。

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.

根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

Civil and Commercial Code of Argentina (“Code”) do not contain specific provisions for distribution contracts. Rather, a distribution contract is considered a so-called “innominate contract”, which combines, among other things, elements of purchase and sales contracts, commercial agency and mandate agreements. Article 1511 establishes that the rules of Chapter 18 (Concession Contracts) shall be applied to distribution agreements when applicable. Therefore, if the distribution agreement does not regulate a specific issue, the solution should sought by analogy referring to the statutory provisions related to these three types of contracts as default rules to the extent suitable in a given case.

Form and Formalities

Argentine Law requires no particular form or formalities for this type of agreements. However, written contracts are the most common form of agreements.

Important Provisions

For all parties:

  1. a) Force Majeure: Considering that Argentina tends to be an unstable environment for business due to political reasons, parties may be interested in considering the possibility of including acts of law/change in law and government acts within the scope of force majeure of the agreements.
  2. b) Insurance of products. It is important to have the products covered by an insurance, so that in the event of an accident, losses can be limited.
  3. c) Product registration.

For the supplier:

  1. a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
  2. b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
  3. c) Product Recall.
  4. d) Lead Time.
  5. e) Delays.
  6. f) Stock conditions.

For the distributor:

  1. a) Returns.
  2. b) Clientele compensation.
  3. c) Defective product.
  4. d) Product samples.

Incoterms

In national distribution agreements, Incoterms are not commonly used. However, in international distribution agreements, the most common Incoterms used are the following:

For air transport: FCA (Free Carrier); for ship transport: FOB (Free On Board)

Product Liability

According to Argentine Consumers Law No. 24,240, the term for a consumer to bring an action against the distributor and/or supplier would elapse after three years, the term for other players in the commercialization chain who have a direct contractual relationship with the distributor and/or the supplier (e.g. retailers who have acquired the goods from the distributor and/or the distributor’s subcontractor) would expire only after ten years. In any event, the contractors may be interested in considering the possibility of counting the three-year term from the date of expiration of the products instead of considering the date of termination of the agreement (e.g. the product might be stored and not sold for a while and the mentioned 3-year expiration shall be therefore delayed).

Intellectual Property

Supplier shall obtain and renew registration of the products’ trademarks in Argentina. Besides, supplier should include a clause in the agreement stating that the trademarks are of its own property and that distributor only can use them to the extent granted by supplier in the agreement while it’s still in force. Moreover, distributor should protect supplier’s trademarks.

Termination

La parties may agree freely how to terminate the agreement. In case you agree a non cause resolution clause, such should have a reasonable prior notice so that the other party may have time to get another distribuitor or face the lose of the client, depending how exercise such option.

Applicable Law and Jurisdiction

The parties may agree the law wich they consider more convenient to solve any issue of the agreement. Moreover, the parties also are free to choose a court or an arbitral tribunal within the country or foreign.

The author of this post is 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.

Turkey – New Regulation on mandatory use of Turkish Lira

2018年9月14日

  • 土耳其
  • 分销协议
  • 投资

“Luxury goods justify online sales bans” on third party platforms – as stated in the press release no. 30/2018 of the Higher Regional Court of Frankfurt of July 12, 2018. After the long-awaited Coty-ruling of the ECJ (see the article of December 2017, https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/), the Higher Regional Court of Frankfurt has now applied the ECJ’s guidelines to Coty’s ban of sales via third party platforms and declared it effective – which was actually expected (I). Other high-quality goods – also outside the luxury segment – can justify platforms bans as well – at least this was decided by the Court of Appeal of Hamburg with regard to an eBay ban (II.). The article ends with some practical conclusions (III.).

Luxury products justify platform bans

According to the judgment of the Frankfurt Court of Appeal, Coty can prohibit the distributor from selling its products via third party platforms. Based on Coty’s wording in the selective distribution agreement, however, any distributor is free to establish advertising cooperations with third party platforms, where customers are redirected to the distributor’s own online shop. According to the judgment, the online marketplace ban is already admissible under the EU Vertical Block Exemption Regulation, since it does not constitute a hardcore restriction. The distribution ban could possibly even be exempted from the cartel prohibition, in the field of selective distribution; in this case, it would only be doubtful whether the prohibition of all “sales cooperation with a third party platform, outwardly recognisable from others, regardless of its concrete structure, would be a reasonable mean for the intended aim” (translated text from the original German version), i.e. whether it would be proportionate or whether there would be other means, less interfering with the dealer’s competitiveness. This question was left open by the Court.

Also other high-quality goods may allow platform bans

The case decided by the Hamburg Higher Regional Court (decision of March 22, 2018, file no. 3 U 250/16) concerns a qualitative selective distribution system for food supplements and cosmetics, which runs via the so-called network marketing, as well as via internet. The distribution guidelines contain, among other things, specific indications regarding the distributor’s website, the contact possibilities for customers in accordance with the “principle of personal sales of goods” (since the distribution system aims to sell the product tailored to the customers’ personal needs based on personal advice), as well as the quality of information and the product presentation. The “distribution … via eBay and comparable e-commerce platforms” is expressly prohibited, as it does not meet the quality requirements, at least not “according to the current state” (translated text from the original German version).

The Court of First Instance considered the platform ban to be admissible (District Court of Hamburg, judgment of November 4, 2016, Case No. 315 O 396/15) – which has now been confirmed by the Higher Regional Court of Hamburg. This is because qualitative selective distribution systems are not only admissible for luxury goods and high-technology goods, but also for (other) high-quality goods, “if the goods sold are high-quality and the distribution is combined with parallel customer consulting and support services, with the aim, among other things, of illustrating to the customer an overall sophisticated, high-quality and upscale end product and building up or maintaining a specific product image” (translated text from the original German version).

Within such a selective distribution system for the distribution of food supplements and cosmetics, it could then be admissible “to prohibit the distribution partners, by means of suitable company guidelines, from selling those goods via a specific online sales platform, in order to preserve the product image and the related practice of customer-binding support, as well as to prevent product- and image-damaging business practices of single distribution partners as occurred and consequently pursued in the past” (translated text from the original German version).

The peculiarity here was that they were not “pure prestige products” and, moreover, the Hamburg Higher Regional Court did not limit itself to the – in view of the market shares readily feasible – verification that the platform under Article 2 of the Vertical Block Exemption Regulation was admissible. Rather, the Court vividly and precisely declined the so-called Metro criteria.

Practical conclusions

  1. The Internet remains a growth driver for consumer goods, as also the market data from the German Trade Association confirm: “E-commerce remains a growth driver“.
  2. At the same time, brand manufacturers in particular want growth to be regulated according to the rules of their distribution system and to their requirements. These include, especially for luxury and technically sophisticated products, as well as other products requiring intensive assistance, strict specifications regarding brand identity and advertising appearance (specifications regarding brick store clauses, marketplace bans) and the services to be offered (e.g. chat and / or hotline with information on availability).
  3. Manufacturers should check whether their platform bans comply with ECJ’s requirements or if they wish to impose platform bans – in selective, exclusive, franchise and open distribution.
  4. Who wants to take as little risk as possible, should remain cautious with platform bans outside the selective distribution of luxury goods. In its first reaction, also the Federal Cartel Authority (BKartA, short for “Bundeskartellamt”) declared that the Coty-ruling should apply exclusively to original luxury products: “#Brand manufacturers still have no carte blanche on #platform bans. First assessment: “Limited impact on our practice” (BKartA on Twitter, December 6, 2017). Nevertheless, the European Commission has now spoken against this: in its Competition Policy Brief of April 2018 (“EU competition rules and marketplace bans: Where do we stand after the Coty judgment?), the European Commission states – rather incidentally – that the argumentation of the ECJ in the Coty case should also apply regardless of the luxury character of the distributed products:

„The arguments provided by the Court are valid irrespective of the product category concerned (i.e. luxury goods in the case at hand) and are equally applicable to non-luxury products. Whether a platform ban has the object of restricting the territory into which, or the customers to whom the distributor can sell the products or whether it limits the distributor’s passive sales can logically not depend on the nature of the product concerned.“

In fact, the ECJ has broadly defined “luxury goods” in its judgment: namely as goods whose quality is “not just the result of their material characteristics” but of intangible values – which is usually the case for branded goods (see the Coty-judgment of the ECJ of December 6, 2017, para. 25 and, with regard to “quality goods”, the conclusion of the EU Advocate General of July 26, 2017, para. 92). Furthermore, the ECJ only requests that the goods be bought “also” because of their prestige character, not “alone” or “above all” because of it. In conclusion, a lot of aspects suggest that all brand manufacturers can include platform bans in their distribution agreements – at least in case of market shares up to max. 30%.

  1. Those who are not afraid of confrontations with dealers and antitrust authorities can definitely impose platform bans outside the selective distribution of luxury goods as well – or increasingly rely on premium products and luxury – such as at the perfumery chain Douglas (see the Süddeutsche Zeitung of March 8, 2018, p. 15: “Active and unconventional, Tina Müller ends discounts on Douglas and aims at luxury“).
  2. To ensure consistent quality of sales, specific quality targets are recommended, especially for online sales. The list of possible quality targets is very long. The specifications that have proven to be best practice concern in particular:

– the positioning as a retailer (platform, product range, communication)

– the design of the website (quality, look & feel, etc.)

– the content and product offer of the website,

– the processing of online purchases,

– the consulting and customer service, as well as

– the advertisement.

  1. It is also essential to note that manufacturers are not allowed to totally prohibit distributors from selling online; nor are sales requirements allowed to amount to such a total ban – as the Courts now see in the case of Ascis’ ban of price comparison engines (to this regard, see the following article from April 2018: https://www.legalmondo.com/2018/04/germany-ban-of-price-comparison-engines-and-advertising-on-third-party-platforms/).
  2. Further details can be found in German in the following Law Journals:

– Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisüberblick und Folgen des „Coty“-Urteils des EuGH, in: GRUR-Prax 2018, 39-41;

– Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattform-verboten nach dem EuGH-Urteil Coty, in: DB 2018, 300-306;

– Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchma-schinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 120-123;

– Rohrßen, Internetvertrieb nach Coty – Von Markenware, Beauty und Luxus: Plattformverbote, Preisvergleichsmaschinen und Geoblocking, in: ZVertriebsR 2018, 277-285.

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.

不同的商业环境经常提供签署“保密协议”（“NDA”）,“谅解备忘录”（“MoU”）或“意向书”（“LoI”）的机会。以至于这三个缩写词 （NDA，MoU和LoI）变得司空见惯，特别是在整个国际谈判中。

但是，这种协议经常被不恰当地使用，目的与国际商业惯例中订立的合同不同。由此这种协议没有用，因为它们不会有效地保护当事方的利益，甚至是适得其反。

我们将首先看一看“保密协议”（NDA）的特征以及如何使用它。

NDA是什么?

NDA是一种协议，其作用是保护当事人（通常称为“披露方”和“接受方”）希望彼此分享的保密信息，在不同情况下有:为与投资有关的初步尽职调查转发信息，为分销合同评估商业数据，与技术转让对象的特定产品有关的技术规范等。

事实上，谈判的第一步通常要求由一方或双方提供不同类型的，技术、财务或商业的信息，这些信息（以下称“保密信息”）在谈判结束期间和谈判之后必须保密。

当事人是谁?

从协议前提来看，正确识别有义务保护信息并保持其保密性的当事人非常重要，特别是在涉及集团公司、对话方可能较多且位于不同国家的情况下。在这种情况下，建议接受方通过具体条款保证所有公司的保密性。同样重要的是，该协议应准确地指明属于接受方组织的有权获得信息的人员（如：雇员、技术顾问、专家、合作者等），如有可能，应由所有参与人员签署保密协议。

什么是保密信息？

使用回收的NDA模板，可以在表单上找到，也可以由对应方提出，这当然不是一种推荐的做法，但不幸的是，这种做法非常普遍。这些模板常常是通用的，包括对保密信息的广泛定义和非常详细的列表，实际上包括了一项商业活动的所有内容，通常包括与交易活动无关的领域或非保密信息。

这些模板的问题是事后很难检查保密信息中是否包含的某些细节。例如因为在NDA签署之前不知道是否接受方已经拥有信息，或因信息没有在包含非常详细的清单的条款中明确提及，该清单不包括令人感兴趣的个别信息，或因在NDA签署之后信息以非保密且不可追踪的方式传输（例如，作为电子邮件的附件）。

最好的方法是以非常具体的方式指明需要共享的信息，将文件列在NDA的附件中，然后使文件以保密的形式提供，例如通过水印或者标记“NDA下的机密”。此外，最好是以安全的方式提供对保密信息的访问（例如只能通过分配给授权人员的个人用户名和密码登录访问在云中或在披露方服务器上受保护的区域）。

禁止使用保密信息

通常NDA模型只要求接收方保持信息的保密性，而不禁止其使用。这可能比披露更危险，特别是在双方为竞争公司的情况下：比如基于所获得数据的技术或专利的发展，或者客户名单或其他商业信息的使用。为了强调和加强这一义务，将文件命名为“保密和非使用协议”（“NDNUA”）更为正确。

期间

NDA的作用是在整个协议期间保护双方之间共享保密信息。因此，必须明确说明最后使用该信息的时间，并且如果接受方拥有保密信息的副本，确定归还或销毁文件，在保密协议结束后几个月（多年更好）保持。

不履行

通常量化因违反保密义务而产生的损害非常复杂。因此，规定惩罚条款可能是有用的，该条款预先规定了违约所造成的损害额。为此，重要的是考虑到对于因违反保密规定而造成的损害，惩罚的量化必须是合理的，并可根据违约的不同情况确定不同类型的惩罚（例如，使用共享技术信息注册或假冒专利，或与某些业务合作伙伴联系）。

在NDA中写入一个惩罚条款还有另外的优势:如果在谈判期间接受方对该条款提出异议或请求减少该条款，则该条款可表明对违约的心理保留，而且无论如何，这表明对支付该金额的忧虑，如果接受方打算严格履行合同义务，该忧虑就没有理由存在。

诉讼，管辖权及适用法律

即使在这种情况下，经常有不利好的做法，就是将这条款置于协议末尾（关于所谓的午夜条款，请参考legalmondo），因此对其内容没有给予足够的重视，这可能导致采用错误的（或无效的）条款。

实际上，这是一项非常重要的条款，因为其可以确保合同执行和/或获得快速有效执行的司法判决。没有一个适用于所有情况的解决办法，需要考虑谈判的个别具体规定:例如，在与中国对应方签订的保密协议中，选择意大利司法管辖并适用意大利法律可能会适得其反，因为有不履行的情况下，通常需要在中国迅速采取行动（甚至紧急采取行动）。因此，更适当的做法是，用中英双语草拟NDA，并规定在中国进行仲裁，适用中国法律。

结论

建议不要“自己动手”，而是寻求懂得如何起草NDA和同时考虑到案件的所有特点（谈判类型、拟分享的信息、当事人所在地和将执行NDA的国家）的律师的法律意见。

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.

根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

Civil and Commercial Code of Argentina (“Code”) do not contain specific provisions for distribution contracts. Rather, a distribution contract is considered a so-called “innominate contract”, which combines, among other things, elements of purchase and sales contracts, commercial agency and mandate agreements. Article 1511 establishes that the rules of Chapter 18 (Concession Contracts) shall be applied to distribution agreements when applicable. Therefore, if the distribution agreement does not regulate a specific issue, the solution should sought by analogy referring to the statutory provisions related to these three types of contracts as default rules to the extent suitable in a given case.

Form and Formalities

Argentine Law requires no particular form or formalities for this type of agreements. However, written contracts are the most common form of agreements.

Important Provisions

For all parties:

  1. a) Force Majeure: Considering that Argentina tends to be an unstable environment for business due to political reasons, parties may be interested in considering the possibility of including acts of law/change in law and government acts within the scope of force majeure of the agreements.
  2. b) Insurance of products. It is important to have the products covered by an insurance, so that in the event of an accident, losses can be limited.
  3. c) Product registration.

For the supplier:

  1. a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
  2. b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
  3. c) Product Recall.
  4. d) Lead Time.
  5. e) Delays.
  6. f) Stock conditions.

For the distributor:

  1. a) Returns.
  2. b) Clientele compensation.
  3. c) Defective product.
  4. d) Product samples.

Incoterms

In national distribution agreements, Incoterms are not commonly used. However, in international distribution agreements, the most common Incoterms used are the following:

For air transport: FCA (Free Carrier); for ship transport: FOB (Free On Board)

Product Liability

According to Argentine Consumers Law No. 24,240, the term for a consumer to bring an action against the distributor and/or supplier would elapse after three years, the term for other players in the commercialization chain who have a direct contractual relationship with the distributor and/or the supplier (e.g. retailers who have acquired the goods from the distributor and/or the distributor’s subcontractor) would expire only after ten years. In any event, the contractors may be interested in considering the possibility of counting the three-year term from the date of expiration of the products instead of considering the date of termination of the agreement (e.g. the product might be stored and not sold for a while and the mentioned 3-year expiration shall be therefore delayed).

Intellectual Property

Supplier shall obtain and renew registration of the products’ trademarks in Argentina. Besides, supplier should include a clause in the agreement stating that the trademarks are of its own property and that distributor only can use them to the extent granted by supplier in the agreement while it’s still in force. Moreover, distributor should protect supplier’s trademarks.

Termination

La parties may agree freely how to terminate the agreement. In case you agree a non cause resolution clause, such should have a reasonable prior notice so that the other party may have time to get another distribuitor or face the lose of the client, depending how exercise such option.

Applicable Law and Jurisdiction

The parties may agree the law wich they consider more convenient to solve any issue of the agreement. Moreover, the parties also are free to choose a court or an arbitral tribunal within the country or foreign.

The author of this post is 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.

Berk Çektir

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    法国–特许经营关系网和劳动法

    2018年9月4日

    • 法国
    • 分销协议
    • 特许经营

    “Luxury goods justify online sales bans” on third party platforms – as stated in the press release no. 30/2018 of the Higher Regional Court of Frankfurt of July 12, 2018. After the long-awaited Coty-ruling of the ECJ (see the article of December 2017, https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/), the Higher Regional Court of Frankfurt has now applied the ECJ’s guidelines to Coty’s ban of sales via third party platforms and declared it effective – which was actually expected (I). Other high-quality goods – also outside the luxury segment – can justify platforms bans as well – at least this was decided by the Court of Appeal of Hamburg with regard to an eBay ban (II.). The article ends with some practical conclusions (III.).

    Luxury products justify platform bans

    According to the judgment of the Frankfurt Court of Appeal, Coty can prohibit the distributor from selling its products via third party platforms. Based on Coty’s wording in the selective distribution agreement, however, any distributor is free to establish advertising cooperations with third party platforms, where customers are redirected to the distributor’s own online shop. According to the judgment, the online marketplace ban is already admissible under the EU Vertical Block Exemption Regulation, since it does not constitute a hardcore restriction. The distribution ban could possibly even be exempted from the cartel prohibition, in the field of selective distribution; in this case, it would only be doubtful whether the prohibition of all “sales cooperation with a third party platform, outwardly recognisable from others, regardless of its concrete structure, would be a reasonable mean for the intended aim” (translated text from the original German version), i.e. whether it would be proportionate or whether there would be other means, less interfering with the dealer’s competitiveness. This question was left open by the Court.

    Also other high-quality goods may allow platform bans

    The case decided by the Hamburg Higher Regional Court (decision of March 22, 2018, file no. 3 U 250/16) concerns a qualitative selective distribution system for food supplements and cosmetics, which runs via the so-called network marketing, as well as via internet. The distribution guidelines contain, among other things, specific indications regarding the distributor’s website, the contact possibilities for customers in accordance with the “principle of personal sales of goods” (since the distribution system aims to sell the product tailored to the customers’ personal needs based on personal advice), as well as the quality of information and the product presentation. The “distribution … via eBay and comparable e-commerce platforms” is expressly prohibited, as it does not meet the quality requirements, at least not “according to the current state” (translated text from the original German version).

    The Court of First Instance considered the platform ban to be admissible (District Court of Hamburg, judgment of November 4, 2016, Case No. 315 O 396/15) – which has now been confirmed by the Higher Regional Court of Hamburg. This is because qualitative selective distribution systems are not only admissible for luxury goods and high-technology goods, but also for (other) high-quality goods, “if the goods sold are high-quality and the distribution is combined with parallel customer consulting and support services, with the aim, among other things, of illustrating to the customer an overall sophisticated, high-quality and upscale end product and building up or maintaining a specific product image” (translated text from the original German version).

    Within such a selective distribution system for the distribution of food supplements and cosmetics, it could then be admissible “to prohibit the distribution partners, by means of suitable company guidelines, from selling those goods via a specific online sales platform, in order to preserve the product image and the related practice of customer-binding support, as well as to prevent product- and image-damaging business practices of single distribution partners as occurred and consequently pursued in the past” (translated text from the original German version).

    The peculiarity here was that they were not “pure prestige products” and, moreover, the Hamburg Higher Regional Court did not limit itself to the – in view of the market shares readily feasible – verification that the platform under Article 2 of the Vertical Block Exemption Regulation was admissible. Rather, the Court vividly and precisely declined the so-called Metro criteria.

    Practical conclusions

    1. The Internet remains a growth driver for consumer goods, as also the market data from the German Trade Association confirm: “E-commerce remains a growth driver“.
    2. At the same time, brand manufacturers in particular want growth to be regulated according to the rules of their distribution system and to their requirements. These include, especially for luxury and technically sophisticated products, as well as other products requiring intensive assistance, strict specifications regarding brand identity and advertising appearance (specifications regarding brick store clauses, marketplace bans) and the services to be offered (e.g. chat and / or hotline with information on availability).
    3. Manufacturers should check whether their platform bans comply with ECJ’s requirements or if they wish to impose platform bans – in selective, exclusive, franchise and open distribution.
    4. Who wants to take as little risk as possible, should remain cautious with platform bans outside the selective distribution of luxury goods. In its first reaction, also the Federal Cartel Authority (BKartA, short for “Bundeskartellamt”) declared that the Coty-ruling should apply exclusively to original luxury products: “#Brand manufacturers still have no carte blanche on #platform bans. First assessment: “Limited impact on our practice” (BKartA on Twitter, December 6, 2017). Nevertheless, the European Commission has now spoken against this: in its Competition Policy Brief of April 2018 (“EU competition rules and marketplace bans: Where do we stand after the Coty judgment?), the European Commission states – rather incidentally – that the argumentation of the ECJ in the Coty case should also apply regardless of the luxury character of the distributed products:

    „The arguments provided by the Court are valid irrespective of the product category concerned (i.e. luxury goods in the case at hand) and are equally applicable to non-luxury products. Whether a platform ban has the object of restricting the territory into which, or the customers to whom the distributor can sell the products or whether it limits the distributor’s passive sales can logically not depend on the nature of the product concerned.“

    In fact, the ECJ has broadly defined “luxury goods” in its judgment: namely as goods whose quality is “not just the result of their material characteristics” but of intangible values – which is usually the case for branded goods (see the Coty-judgment of the ECJ of December 6, 2017, para. 25 and, with regard to “quality goods”, the conclusion of the EU Advocate General of July 26, 2017, para. 92). Furthermore, the ECJ only requests that the goods be bought “also” because of their prestige character, not “alone” or “above all” because of it. In conclusion, a lot of aspects suggest that all brand manufacturers can include platform bans in their distribution agreements – at least in case of market shares up to max. 30%.

    1. Those who are not afraid of confrontations with dealers and antitrust authorities can definitely impose platform bans outside the selective distribution of luxury goods as well – or increasingly rely on premium products and luxury – such as at the perfumery chain Douglas (see the Süddeutsche Zeitung of March 8, 2018, p. 15: “Active and unconventional, Tina Müller ends discounts on Douglas and aims at luxury“).
    2. To ensure consistent quality of sales, specific quality targets are recommended, especially for online sales. The list of possible quality targets is very long. The specifications that have proven to be best practice concern in particular:

    – the positioning as a retailer (platform, product range, communication)

    – the design of the website (quality, look & feel, etc.)

    – the content and product offer of the website,

    – the processing of online purchases,

    – the consulting and customer service, as well as

    – the advertisement.

    1. It is also essential to note that manufacturers are not allowed to totally prohibit distributors from selling online; nor are sales requirements allowed to amount to such a total ban – as the Courts now see in the case of Ascis’ ban of price comparison engines (to this regard, see the following article from April 2018: https://www.legalmondo.com/2018/04/germany-ban-of-price-comparison-engines-and-advertising-on-third-party-platforms/).
    2. Further details can be found in German in the following Law Journals:

    – Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisüberblick und Folgen des „Coty“-Urteils des EuGH, in: GRUR-Prax 2018, 39-41;

    – Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattform-verboten nach dem EuGH-Urteil Coty, in: DB 2018, 300-306;

    – Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchma-schinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 120-123;

    – Rohrßen, Internetvertrieb nach Coty – Von Markenware, Beauty und Luxus: Plattformverbote, Preisvergleichsmaschinen und Geoblocking, in: ZVertriebsR 2018, 277-285.

    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.

    不同的商业环境经常提供签署“保密协议”（“NDA”）,“谅解备忘录”（“MoU”）或“意向书”（“LoI”）的机会。以至于这三个缩写词 （NDA，MoU和LoI）变得司空见惯，特别是在整个国际谈判中。

    但是，这种协议经常被不恰当地使用，目的与国际商业惯例中订立的合同不同。由此这种协议没有用，因为它们不会有效地保护当事方的利益，甚至是适得其反。

    我们将首先看一看“保密协议”（NDA）的特征以及如何使用它。

    NDA是什么?

    NDA是一种协议，其作用是保护当事人（通常称为“披露方”和“接受方”）希望彼此分享的保密信息，在不同情况下有:为与投资有关的初步尽职调查转发信息，为分销合同评估商业数据，与技术转让对象的特定产品有关的技术规范等。

    事实上，谈判的第一步通常要求由一方或双方提供不同类型的，技术、财务或商业的信息，这些信息（以下称“保密信息”）在谈判结束期间和谈判之后必须保密。

    当事人是谁?

    从协议前提来看，正确识别有义务保护信息并保持其保密性的当事人非常重要，特别是在涉及集团公司、对话方可能较多且位于不同国家的情况下。在这种情况下，建议接受方通过具体条款保证所有公司的保密性。同样重要的是，该协议应准确地指明属于接受方组织的有权获得信息的人员（如：雇员、技术顾问、专家、合作者等），如有可能，应由所有参与人员签署保密协议。

    什么是保密信息？

    使用回收的NDA模板，可以在表单上找到，也可以由对应方提出，这当然不是一种推荐的做法，但不幸的是，这种做法非常普遍。这些模板常常是通用的，包括对保密信息的广泛定义和非常详细的列表，实际上包括了一项商业活动的所有内容，通常包括与交易活动无关的领域或非保密信息。

    这些模板的问题是事后很难检查保密信息中是否包含的某些细节。例如因为在NDA签署之前不知道是否接受方已经拥有信息，或因信息没有在包含非常详细的清单的条款中明确提及，该清单不包括令人感兴趣的个别信息，或因在NDA签署之后信息以非保密且不可追踪的方式传输（例如，作为电子邮件的附件）。

    最好的方法是以非常具体的方式指明需要共享的信息，将文件列在NDA的附件中，然后使文件以保密的形式提供，例如通过水印或者标记“NDA下的机密”。此外，最好是以安全的方式提供对保密信息的访问（例如只能通过分配给授权人员的个人用户名和密码登录访问在云中或在披露方服务器上受保护的区域）。

    禁止使用保密信息

    通常NDA模型只要求接收方保持信息的保密性，而不禁止其使用。这可能比披露更危险，特别是在双方为竞争公司的情况下：比如基于所获得数据的技术或专利的发展，或者客户名单或其他商业信息的使用。为了强调和加强这一义务，将文件命名为“保密和非使用协议”（“NDNUA”）更为正确。

    期间

    NDA的作用是在整个协议期间保护双方之间共享保密信息。因此，必须明确说明最后使用该信息的时间，并且如果接受方拥有保密信息的副本，确定归还或销毁文件，在保密协议结束后几个月（多年更好）保持。

    不履行

    通常量化因违反保密义务而产生的损害非常复杂。因此，规定惩罚条款可能是有用的，该条款预先规定了违约所造成的损害额。为此，重要的是考虑到对于因违反保密规定而造成的损害，惩罚的量化必须是合理的，并可根据违约的不同情况确定不同类型的惩罚（例如，使用共享技术信息注册或假冒专利，或与某些业务合作伙伴联系）。

    在NDA中写入一个惩罚条款还有另外的优势:如果在谈判期间接受方对该条款提出异议或请求减少该条款，则该条款可表明对违约的心理保留，而且无论如何，这表明对支付该金额的忧虑，如果接受方打算严格履行合同义务，该忧虑就没有理由存在。

    诉讼，管辖权及适用法律

    即使在这种情况下，经常有不利好的做法，就是将这条款置于协议末尾（关于所谓的午夜条款，请参考legalmondo），因此对其内容没有给予足够的重视，这可能导致采用错误的（或无效的）条款。

    实际上，这是一项非常重要的条款，因为其可以确保合同执行和/或获得快速有效执行的司法判决。没有一个适用于所有情况的解决办法，需要考虑谈判的个别具体规定:例如，在与中国对应方签订的保密协议中，选择意大利司法管辖并适用意大利法律可能会适得其反，因为有不履行的情况下，通常需要在中国迅速采取行动（甚至紧急采取行动）。因此，更适当的做法是，用中英双语草拟NDA，并规定在中国进行仲裁，适用中国法律。

    结论

    建议不要“自己动手”，而是寻求懂得如何起草NDA和同时考虑到案件的所有特点（谈判类型、拟分享的信息、当事人所在地和将执行NDA的国家）的律师的法律意见。

    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.

    根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

    然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

    到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

    最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

    然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

    这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

    在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

    在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

    Civil and Commercial Code of Argentina (“Code”) do not contain specific provisions for distribution contracts. Rather, a distribution contract is considered a so-called “innominate contract”, which combines, among other things, elements of purchase and sales contracts, commercial agency and mandate agreements. Article 1511 establishes that the rules of Chapter 18 (Concession Contracts) shall be applied to distribution agreements when applicable. Therefore, if the distribution agreement does not regulate a specific issue, the solution should sought by analogy referring to the statutory provisions related to these three types of contracts as default rules to the extent suitable in a given case.

    Form and Formalities

    Argentine Law requires no particular form or formalities for this type of agreements. However, written contracts are the most common form of agreements.

    Important Provisions

    For all parties:

    1. a) Force Majeure: Considering that Argentina tends to be an unstable environment for business due to political reasons, parties may be interested in considering the possibility of including acts of law/change in law and government acts within the scope of force majeure of the agreements.
    2. b) Insurance of products. It is important to have the products covered by an insurance, so that in the event of an accident, losses can be limited.
    3. c) Product registration.

    For the supplier:

    1. a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
    2. b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
    3. c) Product Recall.
    4. d) Lead Time.
    5. e) Delays.
    6. f) Stock conditions.

    For the distributor:

    1. a) Returns.
    2. b) Clientele compensation.
    3. c) Defective product.
    4. d) Product samples.

    Incoterms

    In national distribution agreements, Incoterms are not commonly used. However, in international distribution agreements, the most common Incoterms used are the following:

    For air transport: FCA (Free Carrier); for ship transport: FOB (Free On Board)

    Product Liability

    According to Argentine Consumers Law No. 24,240, the term for a consumer to bring an action against the distributor and/or supplier would elapse after three years, the term for other players in the commercialization chain who have a direct contractual relationship with the distributor and/or the supplier (e.g. retailers who have acquired the goods from the distributor and/or the distributor’s subcontractor) would expire only after ten years. In any event, the contractors may be interested in considering the possibility of counting the three-year term from the date of expiration of the products instead of considering the date of termination of the agreement (e.g. the product might be stored and not sold for a while and the mentioned 3-year expiration shall be therefore delayed).

    Intellectual Property

    Supplier shall obtain and renew registration of the products’ trademarks in Argentina. Besides, supplier should include a clause in the agreement stating that the trademarks are of its own property and that distributor only can use them to the extent granted by supplier in the agreement while it’s still in force. Moreover, distributor should protect supplier’s trademarks.

    Termination

    La parties may agree freely how to terminate the agreement. In case you agree a non cause resolution clause, such should have a reasonable prior notice so that the other party may have time to get another distribuitor or face the lose of the client, depending how exercise such option.

    Applicable Law and Jurisdiction

    The parties may agree the law wich they consider more convenient to solve any issue of the agreement. Moreover, the parties also are free to choose a court or an arbitral tribunal within the country or foreign.

    The author of this post is 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.

    Christophe Hery

    业务领域

    • 代理中介
    • 反垄断
    • 仲裁
    • 分销协议
    • 电子商务
    联系方式 Christophe

    写信给 Christophe





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      Israel – Termination of international business

      2018年9月4日

      • 以色列
      • 分销协议
      • 诉讼

      “Luxury goods justify online sales bans” on third party platforms – as stated in the press release no. 30/2018 of the Higher Regional Court of Frankfurt of July 12, 2018. After the long-awaited Coty-ruling of the ECJ (see the article of December 2017, https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/), the Higher Regional Court of Frankfurt has now applied the ECJ’s guidelines to Coty’s ban of sales via third party platforms and declared it effective – which was actually expected (I). Other high-quality goods – also outside the luxury segment – can justify platforms bans as well – at least this was decided by the Court of Appeal of Hamburg with regard to an eBay ban (II.). The article ends with some practical conclusions (III.).

      Luxury products justify platform bans

      According to the judgment of the Frankfurt Court of Appeal, Coty can prohibit the distributor from selling its products via third party platforms. Based on Coty’s wording in the selective distribution agreement, however, any distributor is free to establish advertising cooperations with third party platforms, where customers are redirected to the distributor’s own online shop. According to the judgment, the online marketplace ban is already admissible under the EU Vertical Block Exemption Regulation, since it does not constitute a hardcore restriction. The distribution ban could possibly even be exempted from the cartel prohibition, in the field of selective distribution; in this case, it would only be doubtful whether the prohibition of all “sales cooperation with a third party platform, outwardly recognisable from others, regardless of its concrete structure, would be a reasonable mean for the intended aim” (translated text from the original German version), i.e. whether it would be proportionate or whether there would be other means, less interfering with the dealer’s competitiveness. This question was left open by the Court.

      Also other high-quality goods may allow platform bans

      The case decided by the Hamburg Higher Regional Court (decision of March 22, 2018, file no. 3 U 250/16) concerns a qualitative selective distribution system for food supplements and cosmetics, which runs via the so-called network marketing, as well as via internet. The distribution guidelines contain, among other things, specific indications regarding the distributor’s website, the contact possibilities for customers in accordance with the “principle of personal sales of goods” (since the distribution system aims to sell the product tailored to the customers’ personal needs based on personal advice), as well as the quality of information and the product presentation. The “distribution … via eBay and comparable e-commerce platforms” is expressly prohibited, as it does not meet the quality requirements, at least not “according to the current state” (translated text from the original German version).

      The Court of First Instance considered the platform ban to be admissible (District Court of Hamburg, judgment of November 4, 2016, Case No. 315 O 396/15) – which has now been confirmed by the Higher Regional Court of Hamburg. This is because qualitative selective distribution systems are not only admissible for luxury goods and high-technology goods, but also for (other) high-quality goods, “if the goods sold are high-quality and the distribution is combined with parallel customer consulting and support services, with the aim, among other things, of illustrating to the customer an overall sophisticated, high-quality and upscale end product and building up or maintaining a specific product image” (translated text from the original German version).

      Within such a selective distribution system for the distribution of food supplements and cosmetics, it could then be admissible “to prohibit the distribution partners, by means of suitable company guidelines, from selling those goods via a specific online sales platform, in order to preserve the product image and the related practice of customer-binding support, as well as to prevent product- and image-damaging business practices of single distribution partners as occurred and consequently pursued in the past” (translated text from the original German version).

      The peculiarity here was that they were not “pure prestige products” and, moreover, the Hamburg Higher Regional Court did not limit itself to the – in view of the market shares readily feasible – verification that the platform under Article 2 of the Vertical Block Exemption Regulation was admissible. Rather, the Court vividly and precisely declined the so-called Metro criteria.

      Practical conclusions

      1. The Internet remains a growth driver for consumer goods, as also the market data from the German Trade Association confirm: “E-commerce remains a growth driver“.
      2. At the same time, brand manufacturers in particular want growth to be regulated according to the rules of their distribution system and to their requirements. These include, especially for luxury and technically sophisticated products, as well as other products requiring intensive assistance, strict specifications regarding brand identity and advertising appearance (specifications regarding brick store clauses, marketplace bans) and the services to be offered (e.g. chat and / or hotline with information on availability).
      3. Manufacturers should check whether their platform bans comply with ECJ’s requirements or if they wish to impose platform bans – in selective, exclusive, franchise and open distribution.
      4. Who wants to take as little risk as possible, should remain cautious with platform bans outside the selective distribution of luxury goods. In its first reaction, also the Federal Cartel Authority (BKartA, short for “Bundeskartellamt”) declared that the Coty-ruling should apply exclusively to original luxury products: “#Brand manufacturers still have no carte blanche on #platform bans. First assessment: “Limited impact on our practice” (BKartA on Twitter, December 6, 2017). Nevertheless, the European Commission has now spoken against this: in its Competition Policy Brief of April 2018 (“EU competition rules and marketplace bans: Where do we stand after the Coty judgment?), the European Commission states – rather incidentally – that the argumentation of the ECJ in the Coty case should also apply regardless of the luxury character of the distributed products:

      „The arguments provided by the Court are valid irrespective of the product category concerned (i.e. luxury goods in the case at hand) and are equally applicable to non-luxury products. Whether a platform ban has the object of restricting the territory into which, or the customers to whom the distributor can sell the products or whether it limits the distributor’s passive sales can logically not depend on the nature of the product concerned.“

      In fact, the ECJ has broadly defined “luxury goods” in its judgment: namely as goods whose quality is “not just the result of their material characteristics” but of intangible values – which is usually the case for branded goods (see the Coty-judgment of the ECJ of December 6, 2017, para. 25 and, with regard to “quality goods”, the conclusion of the EU Advocate General of July 26, 2017, para. 92). Furthermore, the ECJ only requests that the goods be bought “also” because of their prestige character, not “alone” or “above all” because of it. In conclusion, a lot of aspects suggest that all brand manufacturers can include platform bans in their distribution agreements – at least in case of market shares up to max. 30%.

      1. Those who are not afraid of confrontations with dealers and antitrust authorities can definitely impose platform bans outside the selective distribution of luxury goods as well – or increasingly rely on premium products and luxury – such as at the perfumery chain Douglas (see the Süddeutsche Zeitung of March 8, 2018, p. 15: “Active and unconventional, Tina Müller ends discounts on Douglas and aims at luxury“).
      2. To ensure consistent quality of sales, specific quality targets are recommended, especially for online sales. The list of possible quality targets is very long. The specifications that have proven to be best practice concern in particular:

      – the positioning as a retailer (platform, product range, communication)

      – the design of the website (quality, look & feel, etc.)

      – the content and product offer of the website,

      – the processing of online purchases,

      – the consulting and customer service, as well as

      – the advertisement.

      1. It is also essential to note that manufacturers are not allowed to totally prohibit distributors from selling online; nor are sales requirements allowed to amount to such a total ban – as the Courts now see in the case of Ascis’ ban of price comparison engines (to this regard, see the following article from April 2018: https://www.legalmondo.com/2018/04/germany-ban-of-price-comparison-engines-and-advertising-on-third-party-platforms/).
      2. Further details can be found in German in the following Law Journals:

      – Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisüberblick und Folgen des „Coty“-Urteils des EuGH, in: GRUR-Prax 2018, 39-41;

      – Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattform-verboten nach dem EuGH-Urteil Coty, in: DB 2018, 300-306;

      – Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchma-schinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 120-123;

      – Rohrßen, Internetvertrieb nach Coty – Von Markenware, Beauty und Luxus: Plattformverbote, Preisvergleichsmaschinen und Geoblocking, in: ZVertriebsR 2018, 277-285.

      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.

      不同的商业环境经常提供签署“保密协议”（“NDA”）,“谅解备忘录”（“MoU”）或“意向书”（“LoI”）的机会。以至于这三个缩写词 （NDA，MoU和LoI）变得司空见惯，特别是在整个国际谈判中。

      但是，这种协议经常被不恰当地使用，目的与国际商业惯例中订立的合同不同。由此这种协议没有用，因为它们不会有效地保护当事方的利益，甚至是适得其反。

      我们将首先看一看“保密协议”（NDA）的特征以及如何使用它。

      NDA是什么?

      NDA是一种协议，其作用是保护当事人（通常称为“披露方”和“接受方”）希望彼此分享的保密信息，在不同情况下有:为与投资有关的初步尽职调查转发信息，为分销合同评估商业数据，与技术转让对象的特定产品有关的技术规范等。

      事实上，谈判的第一步通常要求由一方或双方提供不同类型的，技术、财务或商业的信息，这些信息（以下称“保密信息”）在谈判结束期间和谈判之后必须保密。

      当事人是谁?

      从协议前提来看，正确识别有义务保护信息并保持其保密性的当事人非常重要，特别是在涉及集团公司、对话方可能较多且位于不同国家的情况下。在这种情况下，建议接受方通过具体条款保证所有公司的保密性。同样重要的是，该协议应准确地指明属于接受方组织的有权获得信息的人员（如：雇员、技术顾问、专家、合作者等），如有可能，应由所有参与人员签署保密协议。

      什么是保密信息？

      使用回收的NDA模板，可以在表单上找到，也可以由对应方提出，这当然不是一种推荐的做法，但不幸的是，这种做法非常普遍。这些模板常常是通用的，包括对保密信息的广泛定义和非常详细的列表，实际上包括了一项商业活动的所有内容，通常包括与交易活动无关的领域或非保密信息。

      这些模板的问题是事后很难检查保密信息中是否包含的某些细节。例如因为在NDA签署之前不知道是否接受方已经拥有信息，或因信息没有在包含非常详细的清单的条款中明确提及，该清单不包括令人感兴趣的个别信息，或因在NDA签署之后信息以非保密且不可追踪的方式传输（例如，作为电子邮件的附件）。

      最好的方法是以非常具体的方式指明需要共享的信息，将文件列在NDA的附件中，然后使文件以保密的形式提供，例如通过水印或者标记“NDA下的机密”。此外，最好是以安全的方式提供对保密信息的访问（例如只能通过分配给授权人员的个人用户名和密码登录访问在云中或在披露方服务器上受保护的区域）。

      禁止使用保密信息

      通常NDA模型只要求接收方保持信息的保密性，而不禁止其使用。这可能比披露更危险，特别是在双方为竞争公司的情况下：比如基于所获得数据的技术或专利的发展，或者客户名单或其他商业信息的使用。为了强调和加强这一义务，将文件命名为“保密和非使用协议”（“NDNUA”）更为正确。

      期间

      NDA的作用是在整个协议期间保护双方之间共享保密信息。因此，必须明确说明最后使用该信息的时间，并且如果接受方拥有保密信息的副本，确定归还或销毁文件，在保密协议结束后几个月（多年更好）保持。

      不履行

      通常量化因违反保密义务而产生的损害非常复杂。因此，规定惩罚条款可能是有用的，该条款预先规定了违约所造成的损害额。为此，重要的是考虑到对于因违反保密规定而造成的损害，惩罚的量化必须是合理的，并可根据违约的不同情况确定不同类型的惩罚（例如，使用共享技术信息注册或假冒专利，或与某些业务合作伙伴联系）。

      在NDA中写入一个惩罚条款还有另外的优势:如果在谈判期间接受方对该条款提出异议或请求减少该条款，则该条款可表明对违约的心理保留，而且无论如何，这表明对支付该金额的忧虑，如果接受方打算严格履行合同义务，该忧虑就没有理由存在。

      诉讼，管辖权及适用法律

      即使在这种情况下，经常有不利好的做法，就是将这条款置于协议末尾（关于所谓的午夜条款，请参考legalmondo），因此对其内容没有给予足够的重视，这可能导致采用错误的（或无效的）条款。

      实际上，这是一项非常重要的条款，因为其可以确保合同执行和/或获得快速有效执行的司法判决。没有一个适用于所有情况的解决办法，需要考虑谈判的个别具体规定:例如，在与中国对应方签订的保密协议中，选择意大利司法管辖并适用意大利法律可能会适得其反，因为有不履行的情况下，通常需要在中国迅速采取行动（甚至紧急采取行动）。因此，更适当的做法是，用中英双语草拟NDA，并规定在中国进行仲裁，适用中国法律。

      结论

      建议不要“自己动手”，而是寻求懂得如何起草NDA和同时考虑到案件的所有特点（谈判类型、拟分享的信息、当事人所在地和将执行NDA的国家）的律师的法律意见。

      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.

      根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

      然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

      到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

      最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

      然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

      这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

      在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

      在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

      Civil and Commercial Code of Argentina (“Code”) do not contain specific provisions for distribution contracts. Rather, a distribution contract is considered a so-called “innominate contract”, which combines, among other things, elements of purchase and sales contracts, commercial agency and mandate agreements. Article 1511 establishes that the rules of Chapter 18 (Concession Contracts) shall be applied to distribution agreements when applicable. Therefore, if the distribution agreement does not regulate a specific issue, the solution should sought by analogy referring to the statutory provisions related to these three types of contracts as default rules to the extent suitable in a given case.

      Form and Formalities

      Argentine Law requires no particular form or formalities for this type of agreements. However, written contracts are the most common form of agreements.

      Important Provisions

      For all parties:

      1. a) Force Majeure: Considering that Argentina tends to be an unstable environment for business due to political reasons, parties may be interested in considering the possibility of including acts of law/change in law and government acts within the scope of force majeure of the agreements.
      2. b) Insurance of products. It is important to have the products covered by an insurance, so that in the event of an accident, losses can be limited.
      3. c) Product registration.

      For the supplier:

      1. a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
      2. b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
      3. c) Product Recall.
      4. d) Lead Time.
      5. e) Delays.
      6. f) Stock conditions.

      For the distributor:

      1. a) Returns.
      2. b) Clientele compensation.
      3. c) Defective product.
      4. d) Product samples.

      Incoterms

      In national distribution agreements, Incoterms are not commonly used. However, in international distribution agreements, the most common Incoterms used are the following:

      For air transport: FCA (Free Carrier); for ship transport: FOB (Free On Board)

      Product Liability

      According to Argentine Consumers Law No. 24,240, the term for a consumer to bring an action against the distributor and/or supplier would elapse after three years, the term for other players in the commercialization chain who have a direct contractual relationship with the distributor and/or the supplier (e.g. retailers who have acquired the goods from the distributor and/or the distributor’s subcontractor) would expire only after ten years. In any event, the contractors may be interested in considering the possibility of counting the three-year term from the date of expiration of the products instead of considering the date of termination of the agreement (e.g. the product might be stored and not sold for a while and the mentioned 3-year expiration shall be therefore delayed).

      Intellectual Property

      Supplier shall obtain and renew registration of the products’ trademarks in Argentina. Besides, supplier should include a clause in the agreement stating that the trademarks are of its own property and that distributor only can use them to the extent granted by supplier in the agreement while it’s still in force. Moreover, distributor should protect supplier’s trademarks.

      Termination

      La parties may agree freely how to terminate the agreement. In case you agree a non cause resolution clause, such should have a reasonable prior notice so that the other party may have time to get another distribuitor or face the lose of the client, depending how exercise such option.

      Applicable Law and Jurisdiction

      The parties may agree the law wich they consider more convenient to solve any issue of the agreement. Moreover, the parties also are free to choose a court or an arbitral tribunal within the country or foreign.

      The author of this post is 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.

      Benjamin Leventhal

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        Sales Distribution Agreement – Goods or Services?

        2018年8月28日

        • 意大利
        • 分销协议
        • 诉讼

        “Luxury goods justify online sales bans” on third party platforms – as stated in the press release no. 30/2018 of the Higher Regional Court of Frankfurt of July 12, 2018. After the long-awaited Coty-ruling of the ECJ (see the article of December 2017, https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/), the Higher Regional Court of Frankfurt has now applied the ECJ’s guidelines to Coty’s ban of sales via third party platforms and declared it effective – which was actually expected (I). Other high-quality goods – also outside the luxury segment – can justify platforms bans as well – at least this was decided by the Court of Appeal of Hamburg with regard to an eBay ban (II.). The article ends with some practical conclusions (III.).

        Luxury products justify platform bans

        According to the judgment of the Frankfurt Court of Appeal, Coty can prohibit the distributor from selling its products via third party platforms. Based on Coty’s wording in the selective distribution agreement, however, any distributor is free to establish advertising cooperations with third party platforms, where customers are redirected to the distributor’s own online shop. According to the judgment, the online marketplace ban is already admissible under the EU Vertical Block Exemption Regulation, since it does not constitute a hardcore restriction. The distribution ban could possibly even be exempted from the cartel prohibition, in the field of selective distribution; in this case, it would only be doubtful whether the prohibition of all “sales cooperation with a third party platform, outwardly recognisable from others, regardless of its concrete structure, would be a reasonable mean for the intended aim” (translated text from the original German version), i.e. whether it would be proportionate or whether there would be other means, less interfering with the dealer’s competitiveness. This question was left open by the Court.

        Also other high-quality goods may allow platform bans

        The case decided by the Hamburg Higher Regional Court (decision of March 22, 2018, file no. 3 U 250/16) concerns a qualitative selective distribution system for food supplements and cosmetics, which runs via the so-called network marketing, as well as via internet. The distribution guidelines contain, among other things, specific indications regarding the distributor’s website, the contact possibilities for customers in accordance with the “principle of personal sales of goods” (since the distribution system aims to sell the product tailored to the customers’ personal needs based on personal advice), as well as the quality of information and the product presentation. The “distribution … via eBay and comparable e-commerce platforms” is expressly prohibited, as it does not meet the quality requirements, at least not “according to the current state” (translated text from the original German version).

        The Court of First Instance considered the platform ban to be admissible (District Court of Hamburg, judgment of November 4, 2016, Case No. 315 O 396/15) – which has now been confirmed by the Higher Regional Court of Hamburg. This is because qualitative selective distribution systems are not only admissible for luxury goods and high-technology goods, but also for (other) high-quality goods, “if the goods sold are high-quality and the distribution is combined with parallel customer consulting and support services, with the aim, among other things, of illustrating to the customer an overall sophisticated, high-quality and upscale end product and building up or maintaining a specific product image” (translated text from the original German version).

        Within such a selective distribution system for the distribution of food supplements and cosmetics, it could then be admissible “to prohibit the distribution partners, by means of suitable company guidelines, from selling those goods via a specific online sales platform, in order to preserve the product image and the related practice of customer-binding support, as well as to prevent product- and image-damaging business practices of single distribution partners as occurred and consequently pursued in the past” (translated text from the original German version).

        The peculiarity here was that they were not “pure prestige products” and, moreover, the Hamburg Higher Regional Court did not limit itself to the – in view of the market shares readily feasible – verification that the platform under Article 2 of the Vertical Block Exemption Regulation was admissible. Rather, the Court vividly and precisely declined the so-called Metro criteria.

        Practical conclusions

        1. The Internet remains a growth driver for consumer goods, as also the market data from the German Trade Association confirm: “E-commerce remains a growth driver“.
        2. At the same time, brand manufacturers in particular want growth to be regulated according to the rules of their distribution system and to their requirements. These include, especially for luxury and technically sophisticated products, as well as other products requiring intensive assistance, strict specifications regarding brand identity and advertising appearance (specifications regarding brick store clauses, marketplace bans) and the services to be offered (e.g. chat and / or hotline with information on availability).
        3. Manufacturers should check whether their platform bans comply with ECJ’s requirements or if they wish to impose platform bans – in selective, exclusive, franchise and open distribution.
        4. Who wants to take as little risk as possible, should remain cautious with platform bans outside the selective distribution of luxury goods. In its first reaction, also the Federal Cartel Authority (BKartA, short for “Bundeskartellamt”) declared that the Coty-ruling should apply exclusively to original luxury products: “#Brand manufacturers still have no carte blanche on #platform bans. First assessment: “Limited impact on our practice” (BKartA on Twitter, December 6, 2017). Nevertheless, the European Commission has now spoken against this: in its Competition Policy Brief of April 2018 (“EU competition rules and marketplace bans: Where do we stand after the Coty judgment?), the European Commission states – rather incidentally – that the argumentation of the ECJ in the Coty case should also apply regardless of the luxury character of the distributed products:

        „The arguments provided by the Court are valid irrespective of the product category concerned (i.e. luxury goods in the case at hand) and are equally applicable to non-luxury products. Whether a platform ban has the object of restricting the territory into which, or the customers to whom the distributor can sell the products or whether it limits the distributor’s passive sales can logically not depend on the nature of the product concerned.“

        In fact, the ECJ has broadly defined “luxury goods” in its judgment: namely as goods whose quality is “not just the result of their material characteristics” but of intangible values – which is usually the case for branded goods (see the Coty-judgment of the ECJ of December 6, 2017, para. 25 and, with regard to “quality goods”, the conclusion of the EU Advocate General of July 26, 2017, para. 92). Furthermore, the ECJ only requests that the goods be bought “also” because of their prestige character, not “alone” or “above all” because of it. In conclusion, a lot of aspects suggest that all brand manufacturers can include platform bans in their distribution agreements – at least in case of market shares up to max. 30%.

        1. Those who are not afraid of confrontations with dealers and antitrust authorities can definitely impose platform bans outside the selective distribution of luxury goods as well – or increasingly rely on premium products and luxury – such as at the perfumery chain Douglas (see the Süddeutsche Zeitung of March 8, 2018, p. 15: “Active and unconventional, Tina Müller ends discounts on Douglas and aims at luxury“).
        2. To ensure consistent quality of sales, specific quality targets are recommended, especially for online sales. The list of possible quality targets is very long. The specifications that have proven to be best practice concern in particular:

        – the positioning as a retailer (platform, product range, communication)

        – the design of the website (quality, look & feel, etc.)

        – the content and product offer of the website,

        – the processing of online purchases,

        – the consulting and customer service, as well as

        – the advertisement.

        1. It is also essential to note that manufacturers are not allowed to totally prohibit distributors from selling online; nor are sales requirements allowed to amount to such a total ban – as the Courts now see in the case of Ascis’ ban of price comparison engines (to this regard, see the following article from April 2018: https://www.legalmondo.com/2018/04/germany-ban-of-price-comparison-engines-and-advertising-on-third-party-platforms/).
        2. Further details can be found in German in the following Law Journals:

        – Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisüberblick und Folgen des „Coty“-Urteils des EuGH, in: GRUR-Prax 2018, 39-41;

        – Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattform-verboten nach dem EuGH-Urteil Coty, in: DB 2018, 300-306;

        – Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchma-schinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 120-123;

        – Rohrßen, Internetvertrieb nach Coty – Von Markenware, Beauty und Luxus: Plattformverbote, Preisvergleichsmaschinen und Geoblocking, in: ZVertriebsR 2018, 277-285.

        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.

        不同的商业环境经常提供签署“保密协议”（“NDA”）,“谅解备忘录”（“MoU”）或“意向书”（“LoI”）的机会。以至于这三个缩写词 （NDA，MoU和LoI）变得司空见惯，特别是在整个国际谈判中。

        但是，这种协议经常被不恰当地使用，目的与国际商业惯例中订立的合同不同。由此这种协议没有用，因为它们不会有效地保护当事方的利益，甚至是适得其反。

        我们将首先看一看“保密协议”（NDA）的特征以及如何使用它。

        NDA是什么?

        NDA是一种协议，其作用是保护当事人（通常称为“披露方”和“接受方”）希望彼此分享的保密信息，在不同情况下有:为与投资有关的初步尽职调查转发信息，为分销合同评估商业数据，与技术转让对象的特定产品有关的技术规范等。

        事实上，谈判的第一步通常要求由一方或双方提供不同类型的，技术、财务或商业的信息，这些信息（以下称“保密信息”）在谈判结束期间和谈判之后必须保密。

        当事人是谁?

        从协议前提来看，正确识别有义务保护信息并保持其保密性的当事人非常重要，特别是在涉及集团公司、对话方可能较多且位于不同国家的情况下。在这种情况下，建议接受方通过具体条款保证所有公司的保密性。同样重要的是，该协议应准确地指明属于接受方组织的有权获得信息的人员（如：雇员、技术顾问、专家、合作者等），如有可能，应由所有参与人员签署保密协议。

        什么是保密信息？

        使用回收的NDA模板，可以在表单上找到，也可以由对应方提出，这当然不是一种推荐的做法，但不幸的是，这种做法非常普遍。这些模板常常是通用的，包括对保密信息的广泛定义和非常详细的列表，实际上包括了一项商业活动的所有内容，通常包括与交易活动无关的领域或非保密信息。

        这些模板的问题是事后很难检查保密信息中是否包含的某些细节。例如因为在NDA签署之前不知道是否接受方已经拥有信息，或因信息没有在包含非常详细的清单的条款中明确提及，该清单不包括令人感兴趣的个别信息，或因在NDA签署之后信息以非保密且不可追踪的方式传输（例如，作为电子邮件的附件）。

        最好的方法是以非常具体的方式指明需要共享的信息，将文件列在NDA的附件中，然后使文件以保密的形式提供，例如通过水印或者标记“NDA下的机密”。此外，最好是以安全的方式提供对保密信息的访问（例如只能通过分配给授权人员的个人用户名和密码登录访问在云中或在披露方服务器上受保护的区域）。

        禁止使用保密信息

        通常NDA模型只要求接收方保持信息的保密性，而不禁止其使用。这可能比披露更危险，特别是在双方为竞争公司的情况下：比如基于所获得数据的技术或专利的发展，或者客户名单或其他商业信息的使用。为了强调和加强这一义务，将文件命名为“保密和非使用协议”（“NDNUA”）更为正确。

        期间

        NDA的作用是在整个协议期间保护双方之间共享保密信息。因此，必须明确说明最后使用该信息的时间，并且如果接受方拥有保密信息的副本，确定归还或销毁文件，在保密协议结束后几个月（多年更好）保持。

        不履行

        通常量化因违反保密义务而产生的损害非常复杂。因此，规定惩罚条款可能是有用的，该条款预先规定了违约所造成的损害额。为此，重要的是考虑到对于因违反保密规定而造成的损害，惩罚的量化必须是合理的，并可根据违约的不同情况确定不同类型的惩罚（例如，使用共享技术信息注册或假冒专利，或与某些业务合作伙伴联系）。

        在NDA中写入一个惩罚条款还有另外的优势:如果在谈判期间接受方对该条款提出异议或请求减少该条款，则该条款可表明对违约的心理保留，而且无论如何，这表明对支付该金额的忧虑，如果接受方打算严格履行合同义务，该忧虑就没有理由存在。

        诉讼，管辖权及适用法律

        即使在这种情况下，经常有不利好的做法，就是将这条款置于协议末尾（关于所谓的午夜条款，请参考legalmondo），因此对其内容没有给予足够的重视，这可能导致采用错误的（或无效的）条款。

        实际上，这是一项非常重要的条款，因为其可以确保合同执行和/或获得快速有效执行的司法判决。没有一个适用于所有情况的解决办法，需要考虑谈判的个别具体规定:例如，在与中国对应方签订的保密协议中，选择意大利司法管辖并适用意大利法律可能会适得其反，因为有不履行的情况下，通常需要在中国迅速采取行动（甚至紧急采取行动）。因此，更适当的做法是，用中英双语草拟NDA，并规定在中国进行仲裁，适用中国法律。

        结论

        建议不要“自己动手”，而是寻求懂得如何起草NDA和同时考虑到案件的所有特点（谈判类型、拟分享的信息、当事人所在地和将执行NDA的国家）的律师的法律意见。

        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.

        根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

        然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

        到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

        最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

        然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

        这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

        在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

        在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

        Civil and Commercial Code of Argentina (“Code”) do not contain specific provisions for distribution contracts. Rather, a distribution contract is considered a so-called “innominate contract”, which combines, among other things, elements of purchase and sales contracts, commercial agency and mandate agreements. Article 1511 establishes that the rules of Chapter 18 (Concession Contracts) shall be applied to distribution agreements when applicable. Therefore, if the distribution agreement does not regulate a specific issue, the solution should sought by analogy referring to the statutory provisions related to these three types of contracts as default rules to the extent suitable in a given case.

        Form and Formalities

        Argentine Law requires no particular form or formalities for this type of agreements. However, written contracts are the most common form of agreements.

        Important Provisions

        For all parties:

        1. a) Force Majeure: Considering that Argentina tends to be an unstable environment for business due to political reasons, parties may be interested in considering the possibility of including acts of law/change in law and government acts within the scope of force majeure of the agreements.
        2. b) Insurance of products. It is important to have the products covered by an insurance, so that in the event of an accident, losses can be limited.
        3. c) Product registration.

        For the supplier:

        1. a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
        2. b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
        3. c) Product Recall.
        4. d) Lead Time.
        5. e) Delays.
        6. f) Stock conditions.

        For the distributor:

        1. a) Returns.
        2. b) Clientele compensation.
        3. c) Defective product.
        4. d) Product samples.

        Incoterms

        In national distribution agreements, Incoterms are not commonly used. However, in international distribution agreements, the most common Incoterms used are the following:

        For air transport: FCA (Free Carrier); for ship transport: FOB (Free On Board)

        Product Liability

        According to Argentine Consumers Law No. 24,240, the term for a consumer to bring an action against the distributor and/or supplier would elapse after three years, the term for other players in the commercialization chain who have a direct contractual relationship with the distributor and/or the supplier (e.g. retailers who have acquired the goods from the distributor and/or the distributor’s subcontractor) would expire only after ten years. In any event, the contractors may be interested in considering the possibility of counting the three-year term from the date of expiration of the products instead of considering the date of termination of the agreement (e.g. the product might be stored and not sold for a while and the mentioned 3-year expiration shall be therefore delayed).

        Intellectual Property

        Supplier shall obtain and renew registration of the products’ trademarks in Argentina. Besides, supplier should include a clause in the agreement stating that the trademarks are of its own property and that distributor only can use them to the extent granted by supplier in the agreement while it’s still in force. Moreover, distributor should protect supplier’s trademarks.

        Termination

        La parties may agree freely how to terminate the agreement. In case you agree a non cause resolution clause, such should have a reasonable prior notice so that the other party may have time to get another distribuitor or face the lose of the client, depending how exercise such option.

        Applicable Law and Jurisdiction

        The parties may agree the law wich they consider more convenient to solve any issue of the agreement. Moreover, the parties also are free to choose a court or an arbitral tribunal within the country or foreign.

        The author of this post is 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.

        Irene Grassi

        业务领域

        • 冲突法
        • 分销协议
        • 诉讼
        联系方式 Irene

        写信给 Irene





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          德国–禁止第三方平台上的价格比较引擎和广告

          2018年8月12日

          • 德国
          • 分销协议
          • 电子商务

          “Luxury goods justify online sales bans” on third party platforms – as stated in the press release no. 30/2018 of the Higher Regional Court of Frankfurt of July 12, 2018. After the long-awaited Coty-ruling of the ECJ (see the article of December 2017, https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/), the Higher Regional Court of Frankfurt has now applied the ECJ’s guidelines to Coty’s ban of sales via third party platforms and declared it effective – which was actually expected (I). Other high-quality goods – also outside the luxury segment – can justify platforms bans as well – at least this was decided by the Court of Appeal of Hamburg with regard to an eBay ban (II.). The article ends with some practical conclusions (III.).

          Luxury products justify platform bans

          According to the judgment of the Frankfurt Court of Appeal, Coty can prohibit the distributor from selling its products via third party platforms. Based on Coty’s wording in the selective distribution agreement, however, any distributor is free to establish advertising cooperations with third party platforms, where customers are redirected to the distributor’s own online shop. According to the judgment, the online marketplace ban is already admissible under the EU Vertical Block Exemption Regulation, since it does not constitute a hardcore restriction. The distribution ban could possibly even be exempted from the cartel prohibition, in the field of selective distribution; in this case, it would only be doubtful whether the prohibition of all “sales cooperation with a third party platform, outwardly recognisable from others, regardless of its concrete structure, would be a reasonable mean for the intended aim” (translated text from the original German version), i.e. whether it would be proportionate or whether there would be other means, less interfering with the dealer’s competitiveness. This question was left open by the Court.

          Also other high-quality goods may allow platform bans

          The case decided by the Hamburg Higher Regional Court (decision of March 22, 2018, file no. 3 U 250/16) concerns a qualitative selective distribution system for food supplements and cosmetics, which runs via the so-called network marketing, as well as via internet. The distribution guidelines contain, among other things, specific indications regarding the distributor’s website, the contact possibilities for customers in accordance with the “principle of personal sales of goods” (since the distribution system aims to sell the product tailored to the customers’ personal needs based on personal advice), as well as the quality of information and the product presentation. The “distribution … via eBay and comparable e-commerce platforms” is expressly prohibited, as it does not meet the quality requirements, at least not “according to the current state” (translated text from the original German version).

          The Court of First Instance considered the platform ban to be admissible (District Court of Hamburg, judgment of November 4, 2016, Case No. 315 O 396/15) – which has now been confirmed by the Higher Regional Court of Hamburg. This is because qualitative selective distribution systems are not only admissible for luxury goods and high-technology goods, but also for (other) high-quality goods, “if the goods sold are high-quality and the distribution is combined with parallel customer consulting and support services, with the aim, among other things, of illustrating to the customer an overall sophisticated, high-quality and upscale end product and building up or maintaining a specific product image” (translated text from the original German version).

          Within such a selective distribution system for the distribution of food supplements and cosmetics, it could then be admissible “to prohibit the distribution partners, by means of suitable company guidelines, from selling those goods via a specific online sales platform, in order to preserve the product image and the related practice of customer-binding support, as well as to prevent product- and image-damaging business practices of single distribution partners as occurred and consequently pursued in the past” (translated text from the original German version).

          The peculiarity here was that they were not “pure prestige products” and, moreover, the Hamburg Higher Regional Court did not limit itself to the – in view of the market shares readily feasible – verification that the platform under Article 2 of the Vertical Block Exemption Regulation was admissible. Rather, the Court vividly and precisely declined the so-called Metro criteria.

          Practical conclusions

          1. The Internet remains a growth driver for consumer goods, as also the market data from the German Trade Association confirm: “E-commerce remains a growth driver“.
          2. At the same time, brand manufacturers in particular want growth to be regulated according to the rules of their distribution system and to their requirements. These include, especially for luxury and technically sophisticated products, as well as other products requiring intensive assistance, strict specifications regarding brand identity and advertising appearance (specifications regarding brick store clauses, marketplace bans) and the services to be offered (e.g. chat and / or hotline with information on availability).
          3. Manufacturers should check whether their platform bans comply with ECJ’s requirements or if they wish to impose platform bans – in selective, exclusive, franchise and open distribution.
          4. Who wants to take as little risk as possible, should remain cautious with platform bans outside the selective distribution of luxury goods. In its first reaction, also the Federal Cartel Authority (BKartA, short for “Bundeskartellamt”) declared that the Coty-ruling should apply exclusively to original luxury products: “#Brand manufacturers still have no carte blanche on #platform bans. First assessment: “Limited impact on our practice” (BKartA on Twitter, December 6, 2017). Nevertheless, the European Commission has now spoken against this: in its Competition Policy Brief of April 2018 (“EU competition rules and marketplace bans: Where do we stand after the Coty judgment?), the European Commission states – rather incidentally – that the argumentation of the ECJ in the Coty case should also apply regardless of the luxury character of the distributed products:

          „The arguments provided by the Court are valid irrespective of the product category concerned (i.e. luxury goods in the case at hand) and are equally applicable to non-luxury products. Whether a platform ban has the object of restricting the territory into which, or the customers to whom the distributor can sell the products or whether it limits the distributor’s passive sales can logically not depend on the nature of the product concerned.“

          In fact, the ECJ has broadly defined “luxury goods” in its judgment: namely as goods whose quality is “not just the result of their material characteristics” but of intangible values – which is usually the case for branded goods (see the Coty-judgment of the ECJ of December 6, 2017, para. 25 and, with regard to “quality goods”, the conclusion of the EU Advocate General of July 26, 2017, para. 92). Furthermore, the ECJ only requests that the goods be bought “also” because of their prestige character, not “alone” or “above all” because of it. In conclusion, a lot of aspects suggest that all brand manufacturers can include platform bans in their distribution agreements – at least in case of market shares up to max. 30%.

          1. Those who are not afraid of confrontations with dealers and antitrust authorities can definitely impose platform bans outside the selective distribution of luxury goods as well – or increasingly rely on premium products and luxury – such as at the perfumery chain Douglas (see the Süddeutsche Zeitung of March 8, 2018, p. 15: “Active and unconventional, Tina Müller ends discounts on Douglas and aims at luxury“).
          2. To ensure consistent quality of sales, specific quality targets are recommended, especially for online sales. The list of possible quality targets is very long. The specifications that have proven to be best practice concern in particular:

          – the positioning as a retailer (platform, product range, communication)

          – the design of the website (quality, look & feel, etc.)

          – the content and product offer of the website,

          – the processing of online purchases,

          – the consulting and customer service, as well as

          – the advertisement.

          1. It is also essential to note that manufacturers are not allowed to totally prohibit distributors from selling online; nor are sales requirements allowed to amount to such a total ban – as the Courts now see in the case of Ascis’ ban of price comparison engines (to this regard, see the following article from April 2018: https://www.legalmondo.com/2018/04/germany-ban-of-price-comparison-engines-and-advertising-on-third-party-platforms/).
          2. Further details can be found in German in the following Law Journals:

          – Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisüberblick und Folgen des „Coty“-Urteils des EuGH, in: GRUR-Prax 2018, 39-41;

          – Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattform-verboten nach dem EuGH-Urteil Coty, in: DB 2018, 300-306;

          – Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchma-schinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 120-123;

          – Rohrßen, Internetvertrieb nach Coty – Von Markenware, Beauty und Luxus: Plattformverbote, Preisvergleichsmaschinen und Geoblocking, in: ZVertriebsR 2018, 277-285.

          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.

          不同的商业环境经常提供签署“保密协议”（“NDA”）,“谅解备忘录”（“MoU”）或“意向书”（“LoI”）的机会。以至于这三个缩写词 （NDA，MoU和LoI）变得司空见惯，特别是在整个国际谈判中。

          但是，这种协议经常被不恰当地使用，目的与国际商业惯例中订立的合同不同。由此这种协议没有用，因为它们不会有效地保护当事方的利益，甚至是适得其反。

          我们将首先看一看“保密协议”（NDA）的特征以及如何使用它。

          NDA是什么?

          NDA是一种协议，其作用是保护当事人（通常称为“披露方”和“接受方”）希望彼此分享的保密信息，在不同情况下有:为与投资有关的初步尽职调查转发信息，为分销合同评估商业数据，与技术转让对象的特定产品有关的技术规范等。

          事实上，谈判的第一步通常要求由一方或双方提供不同类型的，技术、财务或商业的信息，这些信息（以下称“保密信息”）在谈判结束期间和谈判之后必须保密。

          当事人是谁?

          从协议前提来看，正确识别有义务保护信息并保持其保密性的当事人非常重要，特别是在涉及集团公司、对话方可能较多且位于不同国家的情况下。在这种情况下，建议接受方通过具体条款保证所有公司的保密性。同样重要的是，该协议应准确地指明属于接受方组织的有权获得信息的人员（如：雇员、技术顾问、专家、合作者等），如有可能，应由所有参与人员签署保密协议。

          什么是保密信息？

          使用回收的NDA模板，可以在表单上找到，也可以由对应方提出，这当然不是一种推荐的做法，但不幸的是，这种做法非常普遍。这些模板常常是通用的，包括对保密信息的广泛定义和非常详细的列表，实际上包括了一项商业活动的所有内容，通常包括与交易活动无关的领域或非保密信息。

          这些模板的问题是事后很难检查保密信息中是否包含的某些细节。例如因为在NDA签署之前不知道是否接受方已经拥有信息，或因信息没有在包含非常详细的清单的条款中明确提及，该清单不包括令人感兴趣的个别信息，或因在NDA签署之后信息以非保密且不可追踪的方式传输（例如，作为电子邮件的附件）。

          最好的方法是以非常具体的方式指明需要共享的信息，将文件列在NDA的附件中，然后使文件以保密的形式提供，例如通过水印或者标记“NDA下的机密”。此外，最好是以安全的方式提供对保密信息的访问（例如只能通过分配给授权人员的个人用户名和密码登录访问在云中或在披露方服务器上受保护的区域）。

          禁止使用保密信息

          通常NDA模型只要求接收方保持信息的保密性，而不禁止其使用。这可能比披露更危险，特别是在双方为竞争公司的情况下：比如基于所获得数据的技术或专利的发展，或者客户名单或其他商业信息的使用。为了强调和加强这一义务，将文件命名为“保密和非使用协议”（“NDNUA”）更为正确。

          期间

          NDA的作用是在整个协议期间保护双方之间共享保密信息。因此，必须明确说明最后使用该信息的时间，并且如果接受方拥有保密信息的副本，确定归还或销毁文件，在保密协议结束后几个月（多年更好）保持。

          不履行

          通常量化因违反保密义务而产生的损害非常复杂。因此，规定惩罚条款可能是有用的，该条款预先规定了违约所造成的损害额。为此，重要的是考虑到对于因违反保密规定而造成的损害，惩罚的量化必须是合理的，并可根据违约的不同情况确定不同类型的惩罚（例如，使用共享技术信息注册或假冒专利，或与某些业务合作伙伴联系）。

          在NDA中写入一个惩罚条款还有另外的优势:如果在谈判期间接受方对该条款提出异议或请求减少该条款，则该条款可表明对违约的心理保留，而且无论如何，这表明对支付该金额的忧虑，如果接受方打算严格履行合同义务，该忧虑就没有理由存在。

          诉讼，管辖权及适用法律

          即使在这种情况下，经常有不利好的做法，就是将这条款置于协议末尾（关于所谓的午夜条款，请参考legalmondo），因此对其内容没有给予足够的重视，这可能导致采用错误的（或无效的）条款。

          实际上，这是一项非常重要的条款，因为其可以确保合同执行和/或获得快速有效执行的司法判决。没有一个适用于所有情况的解决办法，需要考虑谈判的个别具体规定:例如，在与中国对应方签订的保密协议中，选择意大利司法管辖并适用意大利法律可能会适得其反，因为有不履行的情况下，通常需要在中国迅速采取行动（甚至紧急采取行动）。因此，更适当的做法是，用中英双语草拟NDA，并规定在中国进行仲裁，适用中国法律。

          结论

          建议不要“自己动手”，而是寻求懂得如何起草NDA和同时考虑到案件的所有特点（谈判类型、拟分享的信息、当事人所在地和将执行NDA的国家）的律师的法律意见。

          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.

          根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

          然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

          到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

          最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

          然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

          这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

          在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

          在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

          Civil and Commercial Code of Argentina (“Code”) do not contain specific provisions for distribution contracts. Rather, a distribution contract is considered a so-called “innominate contract”, which combines, among other things, elements of purchase and sales contracts, commercial agency and mandate agreements. Article 1511 establishes that the rules of Chapter 18 (Concession Contracts) shall be applied to distribution agreements when applicable. Therefore, if the distribution agreement does not regulate a specific issue, the solution should sought by analogy referring to the statutory provisions related to these three types of contracts as default rules to the extent suitable in a given case.

          Form and Formalities

          Argentine Law requires no particular form or formalities for this type of agreements. However, written contracts are the most common form of agreements.

          Important Provisions

          For all parties:

          1. a) Force Majeure: Considering that Argentina tends to be an unstable environment for business due to political reasons, parties may be interested in considering the possibility of including acts of law/change in law and government acts within the scope of force majeure of the agreements.
          2. b) Insurance of products. It is important to have the products covered by an insurance, so that in the event of an accident, losses can be limited.
          3. c) Product registration.

          For the supplier:

          1. a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
          2. b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
          3. c) Product Recall.
          4. d) Lead Time.
          5. e) Delays.
          6. f) Stock conditions.

          For the distributor:

          1. a) Returns.
          2. b) Clientele compensation.
          3. c) Defective product.
          4. d) Product samples.

          Incoterms

          In national distribution agreements, Incoterms are not commonly used. However, in international distribution agreements, the most common Incoterms used are the following:

          For air transport: FCA (Free Carrier); for ship transport: FOB (Free On Board)

          Product Liability

          According to Argentine Consumers Law No. 24,240, the term for a consumer to bring an action against the distributor and/or supplier would elapse after three years, the term for other players in the commercialization chain who have a direct contractual relationship with the distributor and/or the supplier (e.g. retailers who have acquired the goods from the distributor and/or the distributor’s subcontractor) would expire only after ten years. In any event, the contractors may be interested in considering the possibility of counting the three-year term from the date of expiration of the products instead of considering the date of termination of the agreement (e.g. the product might be stored and not sold for a while and the mentioned 3-year expiration shall be therefore delayed).

          Intellectual Property

          Supplier shall obtain and renew registration of the products’ trademarks in Argentina. Besides, supplier should include a clause in the agreement stating that the trademarks are of its own property and that distributor only can use them to the extent granted by supplier in the agreement while it’s still in force. Moreover, distributor should protect supplier’s trademarks.

          Termination

          La parties may agree freely how to terminate the agreement. In case you agree a non cause resolution clause, such should have a reasonable prior notice so that the other party may have time to get another distribuitor or face the lose of the client, depending how exercise such option.

          Applicable Law and Jurisdiction

          The parties may agree the law wich they consider more convenient to solve any issue of the agreement. Moreover, the parties also are free to choose a court or an arbitral tribunal within the country or foreign.

          The author of this post is 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.

          Benedikt Rohrssen

          业务领域

          • 代理中介
          • 分销协议
          • 电子商务
          • 特许经营
          • 投资
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            Resale Price Maintenance – Exception for short-term promotions?

            2018年8月12日

            • 德国
            • 分销协议

            “Luxury goods justify online sales bans” on third party platforms – as stated in the press release no. 30/2018 of the Higher Regional Court of Frankfurt of July 12, 2018. After the long-awaited Coty-ruling of the ECJ (see the article of December 2017, https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/), the Higher Regional Court of Frankfurt has now applied the ECJ’s guidelines to Coty’s ban of sales via third party platforms and declared it effective – which was actually expected (I). Other high-quality goods – also outside the luxury segment – can justify platforms bans as well – at least this was decided by the Court of Appeal of Hamburg with regard to an eBay ban (II.). The article ends with some practical conclusions (III.).

            Luxury products justify platform bans

            According to the judgment of the Frankfurt Court of Appeal, Coty can prohibit the distributor from selling its products via third party platforms. Based on Coty’s wording in the selective distribution agreement, however, any distributor is free to establish advertising cooperations with third party platforms, where customers are redirected to the distributor’s own online shop. According to the judgment, the online marketplace ban is already admissible under the EU Vertical Block Exemption Regulation, since it does not constitute a hardcore restriction. The distribution ban could possibly even be exempted from the cartel prohibition, in the field of selective distribution; in this case, it would only be doubtful whether the prohibition of all “sales cooperation with a third party platform, outwardly recognisable from others, regardless of its concrete structure, would be a reasonable mean for the intended aim” (translated text from the original German version), i.e. whether it would be proportionate or whether there would be other means, less interfering with the dealer’s competitiveness. This question was left open by the Court.

            Also other high-quality goods may allow platform bans

            The case decided by the Hamburg Higher Regional Court (decision of March 22, 2018, file no. 3 U 250/16) concerns a qualitative selective distribution system for food supplements and cosmetics, which runs via the so-called network marketing, as well as via internet. The distribution guidelines contain, among other things, specific indications regarding the distributor’s website, the contact possibilities for customers in accordance with the “principle of personal sales of goods” (since the distribution system aims to sell the product tailored to the customers’ personal needs based on personal advice), as well as the quality of information and the product presentation. The “distribution … via eBay and comparable e-commerce platforms” is expressly prohibited, as it does not meet the quality requirements, at least not “according to the current state” (translated text from the original German version).

            The Court of First Instance considered the platform ban to be admissible (District Court of Hamburg, judgment of November 4, 2016, Case No. 315 O 396/15) – which has now been confirmed by the Higher Regional Court of Hamburg. This is because qualitative selective distribution systems are not only admissible for luxury goods and high-technology goods, but also for (other) high-quality goods, “if the goods sold are high-quality and the distribution is combined with parallel customer consulting and support services, with the aim, among other things, of illustrating to the customer an overall sophisticated, high-quality and upscale end product and building up or maintaining a specific product image” (translated text from the original German version).

            Within such a selective distribution system for the distribution of food supplements and cosmetics, it could then be admissible “to prohibit the distribution partners, by means of suitable company guidelines, from selling those goods via a specific online sales platform, in order to preserve the product image and the related practice of customer-binding support, as well as to prevent product- and image-damaging business practices of single distribution partners as occurred and consequently pursued in the past” (translated text from the original German version).

            The peculiarity here was that they were not “pure prestige products” and, moreover, the Hamburg Higher Regional Court did not limit itself to the – in view of the market shares readily feasible – verification that the platform under Article 2 of the Vertical Block Exemption Regulation was admissible. Rather, the Court vividly and precisely declined the so-called Metro criteria.

            Practical conclusions

            1. The Internet remains a growth driver for consumer goods, as also the market data from the German Trade Association confirm: “E-commerce remains a growth driver“.
            2. At the same time, brand manufacturers in particular want growth to be regulated according to the rules of their distribution system and to their requirements. These include, especially for luxury and technically sophisticated products, as well as other products requiring intensive assistance, strict specifications regarding brand identity and advertising appearance (specifications regarding brick store clauses, marketplace bans) and the services to be offered (e.g. chat and / or hotline with information on availability).
            3. Manufacturers should check whether their platform bans comply with ECJ’s requirements or if they wish to impose platform bans – in selective, exclusive, franchise and open distribution.
            4. Who wants to take as little risk as possible, should remain cautious with platform bans outside the selective distribution of luxury goods. In its first reaction, also the Federal Cartel Authority (BKartA, short for “Bundeskartellamt”) declared that the Coty-ruling should apply exclusively to original luxury products: “#Brand manufacturers still have no carte blanche on #platform bans. First assessment: “Limited impact on our practice” (BKartA on Twitter, December 6, 2017). Nevertheless, the European Commission has now spoken against this: in its Competition Policy Brief of April 2018 (“EU competition rules and marketplace bans: Where do we stand after the Coty judgment?), the European Commission states – rather incidentally – that the argumentation of the ECJ in the Coty case should also apply regardless of the luxury character of the distributed products:

            „The arguments provided by the Court are valid irrespective of the product category concerned (i.e. luxury goods in the case at hand) and are equally applicable to non-luxury products. Whether a platform ban has the object of restricting the territory into which, or the customers to whom the distributor can sell the products or whether it limits the distributor’s passive sales can logically not depend on the nature of the product concerned.“

            In fact, the ECJ has broadly defined “luxury goods” in its judgment: namely as goods whose quality is “not just the result of their material characteristics” but of intangible values – which is usually the case for branded goods (see the Coty-judgment of the ECJ of December 6, 2017, para. 25 and, with regard to “quality goods”, the conclusion of the EU Advocate General of July 26, 2017, para. 92). Furthermore, the ECJ only requests that the goods be bought “also” because of their prestige character, not “alone” or “above all” because of it. In conclusion, a lot of aspects suggest that all brand manufacturers can include platform bans in their distribution agreements – at least in case of market shares up to max. 30%.

            1. Those who are not afraid of confrontations with dealers and antitrust authorities can definitely impose platform bans outside the selective distribution of luxury goods as well – or increasingly rely on premium products and luxury – such as at the perfumery chain Douglas (see the Süddeutsche Zeitung of March 8, 2018, p. 15: “Active and unconventional, Tina Müller ends discounts on Douglas and aims at luxury“).
            2. To ensure consistent quality of sales, specific quality targets are recommended, especially for online sales. The list of possible quality targets is very long. The specifications that have proven to be best practice concern in particular:

            – the positioning as a retailer (platform, product range, communication)

            – the design of the website (quality, look & feel, etc.)

            – the content and product offer of the website,

            – the processing of online purchases,

            – the consulting and customer service, as well as

            – the advertisement.

            1. It is also essential to note that manufacturers are not allowed to totally prohibit distributors from selling online; nor are sales requirements allowed to amount to such a total ban – as the Courts now see in the case of Ascis’ ban of price comparison engines (to this regard, see the following article from April 2018: https://www.legalmondo.com/2018/04/germany-ban-of-price-comparison-engines-and-advertising-on-third-party-platforms/).
            2. Further details can be found in German in the following Law Journals:

            – Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisüberblick und Folgen des „Coty“-Urteils des EuGH, in: GRUR-Prax 2018, 39-41;

            – Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattform-verboten nach dem EuGH-Urteil Coty, in: DB 2018, 300-306;

            – Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchma-schinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 120-123;

            – Rohrßen, Internetvertrieb nach Coty – Von Markenware, Beauty und Luxus: Plattformverbote, Preisvergleichsmaschinen und Geoblocking, in: ZVertriebsR 2018, 277-285.

            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.

            不同的商业环境经常提供签署“保密协议”（“NDA”）,“谅解备忘录”（“MoU”）或“意向书”（“LoI”）的机会。以至于这三个缩写词 （NDA，MoU和LoI）变得司空见惯，特别是在整个国际谈判中。

            但是，这种协议经常被不恰当地使用，目的与国际商业惯例中订立的合同不同。由此这种协议没有用，因为它们不会有效地保护当事方的利益，甚至是适得其反。

            我们将首先看一看“保密协议”（NDA）的特征以及如何使用它。

            NDA是什么?

            NDA是一种协议，其作用是保护当事人（通常称为“披露方”和“接受方”）希望彼此分享的保密信息，在不同情况下有:为与投资有关的初步尽职调查转发信息，为分销合同评估商业数据，与技术转让对象的特定产品有关的技术规范等。

            事实上，谈判的第一步通常要求由一方或双方提供不同类型的，技术、财务或商业的信息，这些信息（以下称“保密信息”）在谈判结束期间和谈判之后必须保密。

            当事人是谁?

            从协议前提来看，正确识别有义务保护信息并保持其保密性的当事人非常重要，特别是在涉及集团公司、对话方可能较多且位于不同国家的情况下。在这种情况下，建议接受方通过具体条款保证所有公司的保密性。同样重要的是，该协议应准确地指明属于接受方组织的有权获得信息的人员（如：雇员、技术顾问、专家、合作者等），如有可能，应由所有参与人员签署保密协议。

            什么是保密信息？

            使用回收的NDA模板，可以在表单上找到，也可以由对应方提出，这当然不是一种推荐的做法，但不幸的是，这种做法非常普遍。这些模板常常是通用的，包括对保密信息的广泛定义和非常详细的列表，实际上包括了一项商业活动的所有内容，通常包括与交易活动无关的领域或非保密信息。

            这些模板的问题是事后很难检查保密信息中是否包含的某些细节。例如因为在NDA签署之前不知道是否接受方已经拥有信息，或因信息没有在包含非常详细的清单的条款中明确提及，该清单不包括令人感兴趣的个别信息，或因在NDA签署之后信息以非保密且不可追踪的方式传输（例如，作为电子邮件的附件）。

            最好的方法是以非常具体的方式指明需要共享的信息，将文件列在NDA的附件中，然后使文件以保密的形式提供，例如通过水印或者标记“NDA下的机密”。此外，最好是以安全的方式提供对保密信息的访问（例如只能通过分配给授权人员的个人用户名和密码登录访问在云中或在披露方服务器上受保护的区域）。

            禁止使用保密信息

            通常NDA模型只要求接收方保持信息的保密性，而不禁止其使用。这可能比披露更危险，特别是在双方为竞争公司的情况下：比如基于所获得数据的技术或专利的发展，或者客户名单或其他商业信息的使用。为了强调和加强这一义务，将文件命名为“保密和非使用协议”（“NDNUA”）更为正确。

            期间

            NDA的作用是在整个协议期间保护双方之间共享保密信息。因此，必须明确说明最后使用该信息的时间，并且如果接受方拥有保密信息的副本，确定归还或销毁文件，在保密协议结束后几个月（多年更好）保持。

            不履行

            通常量化因违反保密义务而产生的损害非常复杂。因此，规定惩罚条款可能是有用的，该条款预先规定了违约所造成的损害额。为此，重要的是考虑到对于因违反保密规定而造成的损害，惩罚的量化必须是合理的，并可根据违约的不同情况确定不同类型的惩罚（例如，使用共享技术信息注册或假冒专利，或与某些业务合作伙伴联系）。

            在NDA中写入一个惩罚条款还有另外的优势:如果在谈判期间接受方对该条款提出异议或请求减少该条款，则该条款可表明对违约的心理保留，而且无论如何，这表明对支付该金额的忧虑，如果接受方打算严格履行合同义务，该忧虑就没有理由存在。

            诉讼，管辖权及适用法律

            即使在这种情况下，经常有不利好的做法，就是将这条款置于协议末尾（关于所谓的午夜条款，请参考legalmondo），因此对其内容没有给予足够的重视，这可能导致采用错误的（或无效的）条款。

            实际上，这是一项非常重要的条款，因为其可以确保合同执行和/或获得快速有效执行的司法判决。没有一个适用于所有情况的解决办法，需要考虑谈判的个别具体规定:例如，在与中国对应方签订的保密协议中，选择意大利司法管辖并适用意大利法律可能会适得其反，因为有不履行的情况下，通常需要在中国迅速采取行动（甚至紧急采取行动）。因此，更适当的做法是，用中英双语草拟NDA，并规定在中国进行仲裁，适用中国法律。

            结论

            建议不要“自己动手”，而是寻求懂得如何起草NDA和同时考虑到案件的所有特点（谈判类型、拟分享的信息、当事人所在地和将执行NDA的国家）的律师的法律意见。

            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.

            根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

            然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

            到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

            最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

            然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

            这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

            在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

            在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

            Civil and Commercial Code of Argentina (“Code”) do not contain specific provisions for distribution contracts. Rather, a distribution contract is considered a so-called “innominate contract”, which combines, among other things, elements of purchase and sales contracts, commercial agency and mandate agreements. Article 1511 establishes that the rules of Chapter 18 (Concession Contracts) shall be applied to distribution agreements when applicable. Therefore, if the distribution agreement does not regulate a specific issue, the solution should sought by analogy referring to the statutory provisions related to these three types of contracts as default rules to the extent suitable in a given case.

            Form and Formalities

            Argentine Law requires no particular form or formalities for this type of agreements. However, written contracts are the most common form of agreements.

            Important Provisions

            For all parties:

            1. a) Force Majeure: Considering that Argentina tends to be an unstable environment for business due to political reasons, parties may be interested in considering the possibility of including acts of law/change in law and government acts within the scope of force majeure of the agreements.
            2. b) Insurance of products. It is important to have the products covered by an insurance, so that in the event of an accident, losses can be limited.
            3. c) Product registration.

            For the supplier:

            1. a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
            2. b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
            3. c) Product Recall.
            4. d) Lead Time.
            5. e) Delays.
            6. f) Stock conditions.

            For the distributor:

            1. a) Returns.
            2. b) Clientele compensation.
            3. c) Defective product.
            4. d) Product samples.

            Incoterms

            In national distribution agreements, Incoterms are not commonly used. However, in international distribution agreements, the most common Incoterms used are the following:

            For air transport: FCA (Free Carrier); for ship transport: FOB (Free On Board)

            Product Liability

            According to Argentine Consumers Law No. 24,240, the term for a consumer to bring an action against the distributor and/or supplier would elapse after three years, the term for other players in the commercialization chain who have a direct contractual relationship with the distributor and/or the supplier (e.g. retailers who have acquired the goods from the distributor and/or the distributor’s subcontractor) would expire only after ten years. In any event, the contractors may be interested in considering the possibility of counting the three-year term from the date of expiration of the products instead of considering the date of termination of the agreement (e.g. the product might be stored and not sold for a while and the mentioned 3-year expiration shall be therefore delayed).

            Intellectual Property

            Supplier shall obtain and renew registration of the products’ trademarks in Argentina. Besides, supplier should include a clause in the agreement stating that the trademarks are of its own property and that distributor only can use them to the extent granted by supplier in the agreement while it’s still in force. Moreover, distributor should protect supplier’s trademarks.

            Termination

            La parties may agree freely how to terminate the agreement. In case you agree a non cause resolution clause, such should have a reasonable prior notice so that the other party may have time to get another distribuitor or face the lose of the client, depending how exercise such option.

            Applicable Law and Jurisdiction

            The parties may agree the law wich they consider more convenient to solve any issue of the agreement. Moreover, the parties also are free to choose a court or an arbitral tribunal within the country or foreign.

            The author of this post is 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.

            Benedikt Rohrssen

            业务领域

            • 代理中介
            • 分销协议
            • 电子商务
            • 特许经营
            • 投资
            联系方式 Benedikt

            写信给 Benedikt





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              德国——分销协议的终止：经销商能要求交货吗？

              2018年7月17日

              • 德国
              • 分销协议

              “Luxury goods justify online sales bans” on third party platforms – as stated in the press release no. 30/2018 of the Higher Regional Court of Frankfurt of July 12, 2018. After the long-awaited Coty-ruling of the ECJ (see the article of December 2017, https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/), the Higher Regional Court of Frankfurt has now applied the ECJ’s guidelines to Coty’s ban of sales via third party platforms and declared it effective – which was actually expected (I). Other high-quality goods – also outside the luxury segment – can justify platforms bans as well – at least this was decided by the Court of Appeal of Hamburg with regard to an eBay ban (II.). The article ends with some practical conclusions (III.).

              Luxury products justify platform bans

              According to the judgment of the Frankfurt Court of Appeal, Coty can prohibit the distributor from selling its products via third party platforms. Based on Coty’s wording in the selective distribution agreement, however, any distributor is free to establish advertising cooperations with third party platforms, where customers are redirected to the distributor’s own online shop. According to the judgment, the online marketplace ban is already admissible under the EU Vertical Block Exemption Regulation, since it does not constitute a hardcore restriction. The distribution ban could possibly even be exempted from the cartel prohibition, in the field of selective distribution; in this case, it would only be doubtful whether the prohibition of all “sales cooperation with a third party platform, outwardly recognisable from others, regardless of its concrete structure, would be a reasonable mean for the intended aim” (translated text from the original German version), i.e. whether it would be proportionate or whether there would be other means, less interfering with the dealer’s competitiveness. This question was left open by the Court.

              Also other high-quality goods may allow platform bans

              The case decided by the Hamburg Higher Regional Court (decision of March 22, 2018, file no. 3 U 250/16) concerns a qualitative selective distribution system for food supplements and cosmetics, which runs via the so-called network marketing, as well as via internet. The distribution guidelines contain, among other things, specific indications regarding the distributor’s website, the contact possibilities for customers in accordance with the “principle of personal sales of goods” (since the distribution system aims to sell the product tailored to the customers’ personal needs based on personal advice), as well as the quality of information and the product presentation. The “distribution … via eBay and comparable e-commerce platforms” is expressly prohibited, as it does not meet the quality requirements, at least not “according to the current state” (translated text from the original German version).

              The Court of First Instance considered the platform ban to be admissible (District Court of Hamburg, judgment of November 4, 2016, Case No. 315 O 396/15) – which has now been confirmed by the Higher Regional Court of Hamburg. This is because qualitative selective distribution systems are not only admissible for luxury goods and high-technology goods, but also for (other) high-quality goods, “if the goods sold are high-quality and the distribution is combined with parallel customer consulting and support services, with the aim, among other things, of illustrating to the customer an overall sophisticated, high-quality and upscale end product and building up or maintaining a specific product image” (translated text from the original German version).

              Within such a selective distribution system for the distribution of food supplements and cosmetics, it could then be admissible “to prohibit the distribution partners, by means of suitable company guidelines, from selling those goods via a specific online sales platform, in order to preserve the product image and the related practice of customer-binding support, as well as to prevent product- and image-damaging business practices of single distribution partners as occurred and consequently pursued in the past” (translated text from the original German version).

              The peculiarity here was that they were not “pure prestige products” and, moreover, the Hamburg Higher Regional Court did not limit itself to the – in view of the market shares readily feasible – verification that the platform under Article 2 of the Vertical Block Exemption Regulation was admissible. Rather, the Court vividly and precisely declined the so-called Metro criteria.

              Practical conclusions

              1. The Internet remains a growth driver for consumer goods, as also the market data from the German Trade Association confirm: “E-commerce remains a growth driver“.
              2. At the same time, brand manufacturers in particular want growth to be regulated according to the rules of their distribution system and to their requirements. These include, especially for luxury and technically sophisticated products, as well as other products requiring intensive assistance, strict specifications regarding brand identity and advertising appearance (specifications regarding brick store clauses, marketplace bans) and the services to be offered (e.g. chat and / or hotline with information on availability).
              3. Manufacturers should check whether their platform bans comply with ECJ’s requirements or if they wish to impose platform bans – in selective, exclusive, franchise and open distribution.
              4. Who wants to take as little risk as possible, should remain cautious with platform bans outside the selective distribution of luxury goods. In its first reaction, also the Federal Cartel Authority (BKartA, short for “Bundeskartellamt”) declared that the Coty-ruling should apply exclusively to original luxury products: “#Brand manufacturers still have no carte blanche on #platform bans. First assessment: “Limited impact on our practice” (BKartA on Twitter, December 6, 2017). Nevertheless, the European Commission has now spoken against this: in its Competition Policy Brief of April 2018 (“EU competition rules and marketplace bans: Where do we stand after the Coty judgment?), the European Commission states – rather incidentally – that the argumentation of the ECJ in the Coty case should also apply regardless of the luxury character of the distributed products:

              „The arguments provided by the Court are valid irrespective of the product category concerned (i.e. luxury goods in the case at hand) and are equally applicable to non-luxury products. Whether a platform ban has the object of restricting the territory into which, or the customers to whom the distributor can sell the products or whether it limits the distributor’s passive sales can logically not depend on the nature of the product concerned.“

              In fact, the ECJ has broadly defined “luxury goods” in its judgment: namely as goods whose quality is “not just the result of their material characteristics” but of intangible values – which is usually the case for branded goods (see the Coty-judgment of the ECJ of December 6, 2017, para. 25 and, with regard to “quality goods”, the conclusion of the EU Advocate General of July 26, 2017, para. 92). Furthermore, the ECJ only requests that the goods be bought “also” because of their prestige character, not “alone” or “above all” because of it. In conclusion, a lot of aspects suggest that all brand manufacturers can include platform bans in their distribution agreements – at least in case of market shares up to max. 30%.

              1. Those who are not afraid of confrontations with dealers and antitrust authorities can definitely impose platform bans outside the selective distribution of luxury goods as well – or increasingly rely on premium products and luxury – such as at the perfumery chain Douglas (see the Süddeutsche Zeitung of March 8, 2018, p. 15: “Active and unconventional, Tina Müller ends discounts on Douglas and aims at luxury“).
              2. To ensure consistent quality of sales, specific quality targets are recommended, especially for online sales. The list of possible quality targets is very long. The specifications that have proven to be best practice concern in particular:

              – the positioning as a retailer (platform, product range, communication)

              – the design of the website (quality, look & feel, etc.)

              – the content and product offer of the website,

              – the processing of online purchases,

              – the consulting and customer service, as well as

              – the advertisement.

              1. It is also essential to note that manufacturers are not allowed to totally prohibit distributors from selling online; nor are sales requirements allowed to amount to such a total ban – as the Courts now see in the case of Ascis’ ban of price comparison engines (to this regard, see the following article from April 2018: https://www.legalmondo.com/2018/04/germany-ban-of-price-comparison-engines-and-advertising-on-third-party-platforms/).
              2. Further details can be found in German in the following Law Journals:

              – Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisüberblick und Folgen des „Coty“-Urteils des EuGH, in: GRUR-Prax 2018, 39-41;

              – Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattform-verboten nach dem EuGH-Urteil Coty, in: DB 2018, 300-306;

              – Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchma-schinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 120-123;

              – Rohrßen, Internetvertrieb nach Coty – Von Markenware, Beauty und Luxus: Plattformverbote, Preisvergleichsmaschinen und Geoblocking, in: ZVertriebsR 2018, 277-285.

              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.

              不同的商业环境经常提供签署“保密协议”（“NDA”）,“谅解备忘录”（“MoU”）或“意向书”（“LoI”）的机会。以至于这三个缩写词 （NDA，MoU和LoI）变得司空见惯，特别是在整个国际谈判中。

              但是，这种协议经常被不恰当地使用，目的与国际商业惯例中订立的合同不同。由此这种协议没有用，因为它们不会有效地保护当事方的利益，甚至是适得其反。

              我们将首先看一看“保密协议”（NDA）的特征以及如何使用它。

              NDA是什么?

              NDA是一种协议，其作用是保护当事人（通常称为“披露方”和“接受方”）希望彼此分享的保密信息，在不同情况下有:为与投资有关的初步尽职调查转发信息，为分销合同评估商业数据，与技术转让对象的特定产品有关的技术规范等。

              事实上，谈判的第一步通常要求由一方或双方提供不同类型的，技术、财务或商业的信息，这些信息（以下称“保密信息”）在谈判结束期间和谈判之后必须保密。

              当事人是谁?

              从协议前提来看，正确识别有义务保护信息并保持其保密性的当事人非常重要，特别是在涉及集团公司、对话方可能较多且位于不同国家的情况下。在这种情况下，建议接受方通过具体条款保证所有公司的保密性。同样重要的是，该协议应准确地指明属于接受方组织的有权获得信息的人员（如：雇员、技术顾问、专家、合作者等），如有可能，应由所有参与人员签署保密协议。

              什么是保密信息？

              使用回收的NDA模板，可以在表单上找到，也可以由对应方提出，这当然不是一种推荐的做法，但不幸的是，这种做法非常普遍。这些模板常常是通用的，包括对保密信息的广泛定义和非常详细的列表，实际上包括了一项商业活动的所有内容，通常包括与交易活动无关的领域或非保密信息。

              这些模板的问题是事后很难检查保密信息中是否包含的某些细节。例如因为在NDA签署之前不知道是否接受方已经拥有信息，或因信息没有在包含非常详细的清单的条款中明确提及，该清单不包括令人感兴趣的个别信息，或因在NDA签署之后信息以非保密且不可追踪的方式传输（例如，作为电子邮件的附件）。

              最好的方法是以非常具体的方式指明需要共享的信息，将文件列在NDA的附件中，然后使文件以保密的形式提供，例如通过水印或者标记“NDA下的机密”。此外，最好是以安全的方式提供对保密信息的访问（例如只能通过分配给授权人员的个人用户名和密码登录访问在云中或在披露方服务器上受保护的区域）。

              禁止使用保密信息

              通常NDA模型只要求接收方保持信息的保密性，而不禁止其使用。这可能比披露更危险，特别是在双方为竞争公司的情况下：比如基于所获得数据的技术或专利的发展，或者客户名单或其他商业信息的使用。为了强调和加强这一义务，将文件命名为“保密和非使用协议”（“NDNUA”）更为正确。

              期间

              NDA的作用是在整个协议期间保护双方之间共享保密信息。因此，必须明确说明最后使用该信息的时间，并且如果接受方拥有保密信息的副本，确定归还或销毁文件，在保密协议结束后几个月（多年更好）保持。

              不履行

              通常量化因违反保密义务而产生的损害非常复杂。因此，规定惩罚条款可能是有用的，该条款预先规定了违约所造成的损害额。为此，重要的是考虑到对于因违反保密规定而造成的损害，惩罚的量化必须是合理的，并可根据违约的不同情况确定不同类型的惩罚（例如，使用共享技术信息注册或假冒专利，或与某些业务合作伙伴联系）。

              在NDA中写入一个惩罚条款还有另外的优势:如果在谈判期间接受方对该条款提出异议或请求减少该条款，则该条款可表明对违约的心理保留，而且无论如何，这表明对支付该金额的忧虑，如果接受方打算严格履行合同义务，该忧虑就没有理由存在。

              诉讼，管辖权及适用法律

              即使在这种情况下，经常有不利好的做法，就是将这条款置于协议末尾（关于所谓的午夜条款，请参考legalmondo），因此对其内容没有给予足够的重视，这可能导致采用错误的（或无效的）条款。

              实际上，这是一项非常重要的条款，因为其可以确保合同执行和/或获得快速有效执行的司法判决。没有一个适用于所有情况的解决办法，需要考虑谈判的个别具体规定:例如，在与中国对应方签订的保密协议中，选择意大利司法管辖并适用意大利法律可能会适得其反，因为有不履行的情况下，通常需要在中国迅速采取行动（甚至紧急采取行动）。因此，更适当的做法是，用中英双语草拟NDA，并规定在中国进行仲裁，适用中国法律。

              结论

              建议不要“自己动手”，而是寻求懂得如何起草NDA和同时考虑到案件的所有特点（谈判类型、拟分享的信息、当事人所在地和将执行NDA的国家）的律师的法律意见。

              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.

              根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

              然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

              到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

              最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

              然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

              这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

              在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

              在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

              Civil and Commercial Code of Argentina (“Code”) do not contain specific provisions for distribution contracts. Rather, a distribution contract is considered a so-called “innominate contract”, which combines, among other things, elements of purchase and sales contracts, commercial agency and mandate agreements. Article 1511 establishes that the rules of Chapter 18 (Concession Contracts) shall be applied to distribution agreements when applicable. Therefore, if the distribution agreement does not regulate a specific issue, the solution should sought by analogy referring to the statutory provisions related to these three types of contracts as default rules to the extent suitable in a given case.

              Form and Formalities

              Argentine Law requires no particular form or formalities for this type of agreements. However, written contracts are the most common form of agreements.

              Important Provisions

              For all parties:

              1. a) Force Majeure: Considering that Argentina tends to be an unstable environment for business due to political reasons, parties may be interested in considering the possibility of including acts of law/change in law and government acts within the scope of force majeure of the agreements.
              2. b) Insurance of products. It is important to have the products covered by an insurance, so that in the event of an accident, losses can be limited.
              3. c) Product registration.

              For the supplier:

              1. a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
              2. b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
              3. c) Product Recall.
              4. d) Lead Time.
              5. e) Delays.
              6. f) Stock conditions.

              For the distributor:

              1. a) Returns.
              2. b) Clientele compensation.
              3. c) Defective product.
              4. d) Product samples.

              Incoterms

              In national distribution agreements, Incoterms are not commonly used. However, in international distribution agreements, the most common Incoterms used are the following:

              For air transport: FCA (Free Carrier); for ship transport: FOB (Free On Board)

              Product Liability

              According to Argentine Consumers Law No. 24,240, the term for a consumer to bring an action against the distributor and/or supplier would elapse after three years, the term for other players in the commercialization chain who have a direct contractual relationship with the distributor and/or the supplier (e.g. retailers who have acquired the goods from the distributor and/or the distributor’s subcontractor) would expire only after ten years. In any event, the contractors may be interested in considering the possibility of counting the three-year term from the date of expiration of the products instead of considering the date of termination of the agreement (e.g. the product might be stored and not sold for a while and the mentioned 3-year expiration shall be therefore delayed).

              Intellectual Property

              Supplier shall obtain and renew registration of the products’ trademarks in Argentina. Besides, supplier should include a clause in the agreement stating that the trademarks are of its own property and that distributor only can use them to the extent granted by supplier in the agreement while it’s still in force. Moreover, distributor should protect supplier’s trademarks.

              Termination

              La parties may agree freely how to terminate the agreement. In case you agree a non cause resolution clause, such should have a reasonable prior notice so that the other party may have time to get another distribuitor or face the lose of the client, depending how exercise such option.

              Applicable Law and Jurisdiction

              The parties may agree the law wich they consider more convenient to solve any issue of the agreement. Moreover, the parties also are free to choose a court or an arbitral tribunal within the country or foreign.

              The author of this post is 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.

              Benedikt Rohrssen

              业务领域

              • 代理中介
              • 分销协议
              • 电子商务
              • 特许经营
              • 投资
              联系方式 Benedikt

              写信给 Benedikt





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                欧盟地域封锁禁令–电子商务网站的新战略

                2018年6月14日

                • 欧洲
                • 法国
                • 分销协议
                • 反垄断
                • 电子商务

                “Luxury goods justify online sales bans” on third party platforms – as stated in the press release no. 30/2018 of the Higher Regional Court of Frankfurt of July 12, 2018. After the long-awaited Coty-ruling of the ECJ (see the article of December 2017, https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/), the Higher Regional Court of Frankfurt has now applied the ECJ’s guidelines to Coty’s ban of sales via third party platforms and declared it effective – which was actually expected (I). Other high-quality goods – also outside the luxury segment – can justify platforms bans as well – at least this was decided by the Court of Appeal of Hamburg with regard to an eBay ban (II.). The article ends with some practical conclusions (III.).

                Luxury products justify platform bans

                According to the judgment of the Frankfurt Court of Appeal, Coty can prohibit the distributor from selling its products via third party platforms. Based on Coty’s wording in the selective distribution agreement, however, any distributor is free to establish advertising cooperations with third party platforms, where customers are redirected to the distributor’s own online shop. According to the judgment, the online marketplace ban is already admissible under the EU Vertical Block Exemption Regulation, since it does not constitute a hardcore restriction. The distribution ban could possibly even be exempted from the cartel prohibition, in the field of selective distribution; in this case, it would only be doubtful whether the prohibition of all “sales cooperation with a third party platform, outwardly recognisable from others, regardless of its concrete structure, would be a reasonable mean for the intended aim” (translated text from the original German version), i.e. whether it would be proportionate or whether there would be other means, less interfering with the dealer’s competitiveness. This question was left open by the Court.

                Also other high-quality goods may allow platform bans

                The case decided by the Hamburg Higher Regional Court (decision of March 22, 2018, file no. 3 U 250/16) concerns a qualitative selective distribution system for food supplements and cosmetics, which runs via the so-called network marketing, as well as via internet. The distribution guidelines contain, among other things, specific indications regarding the distributor’s website, the contact possibilities for customers in accordance with the “principle of personal sales of goods” (since the distribution system aims to sell the product tailored to the customers’ personal needs based on personal advice), as well as the quality of information and the product presentation. The “distribution … via eBay and comparable e-commerce platforms” is expressly prohibited, as it does not meet the quality requirements, at least not “according to the current state” (translated text from the original German version).

                The Court of First Instance considered the platform ban to be admissible (District Court of Hamburg, judgment of November 4, 2016, Case No. 315 O 396/15) – which has now been confirmed by the Higher Regional Court of Hamburg. This is because qualitative selective distribution systems are not only admissible for luxury goods and high-technology goods, but also for (other) high-quality goods, “if the goods sold are high-quality and the distribution is combined with parallel customer consulting and support services, with the aim, among other things, of illustrating to the customer an overall sophisticated, high-quality and upscale end product and building up or maintaining a specific product image” (translated text from the original German version).

                Within such a selective distribution system for the distribution of food supplements and cosmetics, it could then be admissible “to prohibit the distribution partners, by means of suitable company guidelines, from selling those goods via a specific online sales platform, in order to preserve the product image and the related practice of customer-binding support, as well as to prevent product- and image-damaging business practices of single distribution partners as occurred and consequently pursued in the past” (translated text from the original German version).

                The peculiarity here was that they were not “pure prestige products” and, moreover, the Hamburg Higher Regional Court did not limit itself to the – in view of the market shares readily feasible – verification that the platform under Article 2 of the Vertical Block Exemption Regulation was admissible. Rather, the Court vividly and precisely declined the so-called Metro criteria.

                Practical conclusions

                1. The Internet remains a growth driver for consumer goods, as also the market data from the German Trade Association confirm: “E-commerce remains a growth driver“.
                2. At the same time, brand manufacturers in particular want growth to be regulated according to the rules of their distribution system and to their requirements. These include, especially for luxury and technically sophisticated products, as well as other products requiring intensive assistance, strict specifications regarding brand identity and advertising appearance (specifications regarding brick store clauses, marketplace bans) and the services to be offered (e.g. chat and / or hotline with information on availability).
                3. Manufacturers should check whether their platform bans comply with ECJ’s requirements or if they wish to impose platform bans – in selective, exclusive, franchise and open distribution.
                4. Who wants to take as little risk as possible, should remain cautious with platform bans outside the selective distribution of luxury goods. In its first reaction, also the Federal Cartel Authority (BKartA, short for “Bundeskartellamt”) declared that the Coty-ruling should apply exclusively to original luxury products: “#Brand manufacturers still have no carte blanche on #platform bans. First assessment: “Limited impact on our practice” (BKartA on Twitter, December 6, 2017). Nevertheless, the European Commission has now spoken against this: in its Competition Policy Brief of April 2018 (“EU competition rules and marketplace bans: Where do we stand after the Coty judgment?), the European Commission states – rather incidentally – that the argumentation of the ECJ in the Coty case should also apply regardless of the luxury character of the distributed products:

                „The arguments provided by the Court are valid irrespective of the product category concerned (i.e. luxury goods in the case at hand) and are equally applicable to non-luxury products. Whether a platform ban has the object of restricting the territory into which, or the customers to whom the distributor can sell the products or whether it limits the distributor’s passive sales can logically not depend on the nature of the product concerned.“

                In fact, the ECJ has broadly defined “luxury goods” in its judgment: namely as goods whose quality is “not just the result of their material characteristics” but of intangible values – which is usually the case for branded goods (see the Coty-judgment of the ECJ of December 6, 2017, para. 25 and, with regard to “quality goods”, the conclusion of the EU Advocate General of July 26, 2017, para. 92). Furthermore, the ECJ only requests that the goods be bought “also” because of their prestige character, not “alone” or “above all” because of it. In conclusion, a lot of aspects suggest that all brand manufacturers can include platform bans in their distribution agreements – at least in case of market shares up to max. 30%.

                1. Those who are not afraid of confrontations with dealers and antitrust authorities can definitely impose platform bans outside the selective distribution of luxury goods as well – or increasingly rely on premium products and luxury – such as at the perfumery chain Douglas (see the Süddeutsche Zeitung of March 8, 2018, p. 15: “Active and unconventional, Tina Müller ends discounts on Douglas and aims at luxury“).
                2. To ensure consistent quality of sales, specific quality targets are recommended, especially for online sales. The list of possible quality targets is very long. The specifications that have proven to be best practice concern in particular:

                – the positioning as a retailer (platform, product range, communication)

                – the design of the website (quality, look & feel, etc.)

                – the content and product offer of the website,

                – the processing of online purchases,

                – the consulting and customer service, as well as

                – the advertisement.

                1. It is also essential to note that manufacturers are not allowed to totally prohibit distributors from selling online; nor are sales requirements allowed to amount to such a total ban – as the Courts now see in the case of Ascis’ ban of price comparison engines (to this regard, see the following article from April 2018: https://www.legalmondo.com/2018/04/germany-ban-of-price-comparison-engines-and-advertising-on-third-party-platforms/).
                2. Further details can be found in German in the following Law Journals:

                – Rohrßen, Vertriebsvorgaben im E-Commerce 2018: Praxisüberblick und Folgen des „Coty“-Urteils des EuGH, in: GRUR-Prax 2018, 39-41;

                – Rohrßen, Internetvertrieb von Markenartikeln: Zulässigkeit von Plattform-verboten nach dem EuGH-Urteil Coty, in: DB 2018, 300-306;

                – Rohrßen, Internetvertrieb: „Nicht Ideal(o)“ – Kombination aus Preissuchma-schinen-Verbot und Logo-Klausel, in: ZVertriebsR 2018, 120-123;

                – Rohrßen, Internetvertrieb nach Coty – Von Markenware, Beauty und Luxus: Plattformverbote, Preisvergleichsmaschinen und Geoblocking, in: ZVertriebsR 2018, 277-285.

                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.

                不同的商业环境经常提供签署“保密协议”（“NDA”）,“谅解备忘录”（“MoU”）或“意向书”（“LoI”）的机会。以至于这三个缩写词 （NDA，MoU和LoI）变得司空见惯，特别是在整个国际谈判中。

                但是，这种协议经常被不恰当地使用，目的与国际商业惯例中订立的合同不同。由此这种协议没有用，因为它们不会有效地保护当事方的利益，甚至是适得其反。

                我们将首先看一看“保密协议”（NDA）的特征以及如何使用它。

                NDA是什么?

                NDA是一种协议，其作用是保护当事人（通常称为“披露方”和“接受方”）希望彼此分享的保密信息，在不同情况下有:为与投资有关的初步尽职调查转发信息，为分销合同评估商业数据，与技术转让对象的特定产品有关的技术规范等。

                事实上，谈判的第一步通常要求由一方或双方提供不同类型的，技术、财务或商业的信息，这些信息（以下称“保密信息”）在谈判结束期间和谈判之后必须保密。

                当事人是谁?

                从协议前提来看，正确识别有义务保护信息并保持其保密性的当事人非常重要，特别是在涉及集团公司、对话方可能较多且位于不同国家的情况下。在这种情况下，建议接受方通过具体条款保证所有公司的保密性。同样重要的是，该协议应准确地指明属于接受方组织的有权获得信息的人员（如：雇员、技术顾问、专家、合作者等），如有可能，应由所有参与人员签署保密协议。

                什么是保密信息？

                使用回收的NDA模板，可以在表单上找到，也可以由对应方提出，这当然不是一种推荐的做法，但不幸的是，这种做法非常普遍。这些模板常常是通用的，包括对保密信息的广泛定义和非常详细的列表，实际上包括了一项商业活动的所有内容，通常包括与交易活动无关的领域或非保密信息。

                这些模板的问题是事后很难检查保密信息中是否包含的某些细节。例如因为在NDA签署之前不知道是否接受方已经拥有信息，或因信息没有在包含非常详细的清单的条款中明确提及，该清单不包括令人感兴趣的个别信息，或因在NDA签署之后信息以非保密且不可追踪的方式传输（例如，作为电子邮件的附件）。

                最好的方法是以非常具体的方式指明需要共享的信息，将文件列在NDA的附件中，然后使文件以保密的形式提供，例如通过水印或者标记“NDA下的机密”。此外，最好是以安全的方式提供对保密信息的访问（例如只能通过分配给授权人员的个人用户名和密码登录访问在云中或在披露方服务器上受保护的区域）。

                禁止使用保密信息

                通常NDA模型只要求接收方保持信息的保密性，而不禁止其使用。这可能比披露更危险，特别是在双方为竞争公司的情况下：比如基于所获得数据的技术或专利的发展，或者客户名单或其他商业信息的使用。为了强调和加强这一义务，将文件命名为“保密和非使用协议”（“NDNUA”）更为正确。

                期间

                NDA的作用是在整个协议期间保护双方之间共享保密信息。因此，必须明确说明最后使用该信息的时间，并且如果接受方拥有保密信息的副本，确定归还或销毁文件，在保密协议结束后几个月（多年更好）保持。

                不履行

                通常量化因违反保密义务而产生的损害非常复杂。因此，规定惩罚条款可能是有用的，该条款预先规定了违约所造成的损害额。为此，重要的是考虑到对于因违反保密规定而造成的损害，惩罚的量化必须是合理的，并可根据违约的不同情况确定不同类型的惩罚（例如，使用共享技术信息注册或假冒专利，或与某些业务合作伙伴联系）。

                在NDA中写入一个惩罚条款还有另外的优势:如果在谈判期间接受方对该条款提出异议或请求减少该条款，则该条款可表明对违约的心理保留，而且无论如何，这表明对支付该金额的忧虑，如果接受方打算严格履行合同义务，该忧虑就没有理由存在。

                诉讼，管辖权及适用法律

                即使在这种情况下，经常有不利好的做法，就是将这条款置于协议末尾（关于所谓的午夜条款，请参考legalmondo），因此对其内容没有给予足够的重视，这可能导致采用错误的（或无效的）条款。

                实际上，这是一项非常重要的条款，因为其可以确保合同执行和/或获得快速有效执行的司法判决。没有一个适用于所有情况的解决办法，需要考虑谈判的个别具体规定:例如，在与中国对应方签订的保密协议中，选择意大利司法管辖并适用意大利法律可能会适得其反，因为有不履行的情况下，通常需要在中国迅速采取行动（甚至紧急采取行动）。因此，更适当的做法是，用中英双语草拟NDA，并规定在中国进行仲裁，适用中国法律。

                结论

                建议不要“自己动手”，而是寻求懂得如何起草NDA和同时考虑到案件的所有特点（谈判类型、拟分享的信息、当事人所在地和将执行NDA的国家）的律师的法律意见。

                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.

                根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

                然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

                到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

                最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

                然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

                这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

                在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

                在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

                Civil and Commercial Code of Argentina (“Code”) do not contain specific provisions for distribution contracts. Rather, a distribution contract is considered a so-called “innominate contract”, which combines, among other things, elements of purchase and sales contracts, commercial agency and mandate agreements. Article 1511 establishes that the rules of Chapter 18 (Concession Contracts) shall be applied to distribution agreements when applicable. Therefore, if the distribution agreement does not regulate a specific issue, the solution should sought by analogy referring to the statutory provisions related to these three types of contracts as default rules to the extent suitable in a given case.

                Form and Formalities

                Argentine Law requires no particular form or formalities for this type of agreements. However, written contracts are the most common form of agreements.

                Important Provisions

                For all parties:

                1. a) Force Majeure: Considering that Argentina tends to be an unstable environment for business due to political reasons, parties may be interested in considering the possibility of including acts of law/change in law and government acts within the scope of force majeure of the agreements.
                2. b) Insurance of products. It is important to have the products covered by an insurance, so that in the event of an accident, losses can be limited.
                3. c) Product registration.

                For the supplier:

                1. a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
                2. b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
                3. c) Product Recall.
                4. d) Lead Time.
                5. e) Delays.
                6. f) Stock conditions.

                For the distributor:

                1. a) Returns.
                2. b) Clientele compensation.
                3. c) Defective product.
                4. d) Product samples.

                Incoterms

                In national distribution agreements, Incoterms are not commonly used. However, in international distribution agreements, the most common Incoterms used are the following:

                For air transport: FCA (Free Carrier); for ship transport: FOB (Free On Board)

                Product Liability

                According to Argentine Consumers Law No. 24,240, the term for a consumer to bring an action against the distributor and/or supplier would elapse after three years, the term for other players in the commercialization chain who have a direct contractual relationship with the distributor and/or the supplier (e.g. retailers who have acquired the goods from the distributor and/or the distributor’s subcontractor) would expire only after ten years. In any event, the contractors may be interested in considering the possibility of counting the three-year term from the date of expiration of the products instead of considering the date of termination of the agreement (e.g. the product might be stored and not sold for a while and the mentioned 3-year expiration shall be therefore delayed).

                Intellectual Property

                Supplier shall obtain and renew registration of the products’ trademarks in Argentina. Besides, supplier should include a clause in the agreement stating that the trademarks are of its own property and that distributor only can use them to the extent granted by supplier in the agreement while it’s still in force. Moreover, distributor should protect supplier’s trademarks.

                Termination

                La parties may agree freely how to terminate the agreement. In case you agree a non cause resolution clause, such should have a reasonable prior notice so that the other party may have time to get another distribuitor or face the lose of the client, depending how exercise such option.

                Applicable Law and Jurisdiction

                The parties may agree the law wich they consider more convenient to solve any issue of the agreement. Moreover, the parties also are free to choose a court or an arbitral tribunal within the country or foreign.

                The author of this post is 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.

                Christophe Hery

                业务领域

                • 代理中介
                • 反垄断
                • 仲裁
                • 分销协议
                • 电子商务
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