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法国
法国–特许经营关系网和劳动法
2018年9月4日
- 分销协议
- 特许经营
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).
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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.
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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.
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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:
- 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.
- 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.
- 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.
- 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.
- Costs are reasonable and known in advance.
- And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.
To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project
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:
- 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.
- 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.
- c) Product registration.
For the supplier:
- a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
- b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
- c) Product Recall.
- d) Lead Time.
- e) Delays.
- f) Stock conditions.
For the distributor:
- a) Returns.
- b) Clientele compensation.
- c) Defective product.
- 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.
法国是特许经营关系网的大市场，近2000家特许经营关系网处于运营状态。这是最成功的商业发展计划之一。
特许人必须主要遵守法国关于预先披露信息的规定以及法国和欧盟的竞争条例等规定。虽然对授予特许者来说，对关系网质量和品牌形象的控制是一个非常重要且合法的问题，但授予特许者不能过多地干预特许经营人的日常活动，因为特许经营人是独立商家。因此，授予特许人与特许经营人之间的关系只能建立在商法的基础上，而不能建立在劳动法的基础上。然而，法国最近的规定将导致授予特许者与特许经营者和他们的雇员一起实施某些劳动法。
在法国经营特许经营关系网的外国特许经营者确实必须知道如何应对《劳动法》（2016年8月8日）及其法令（2017年5月4日）所带来的限制，并自2017年5月7日起生效，该法令涉及为整个特许经营关系网设立一个雇员论坛。事实上，这个社会对话委员会可以对特许经营关系网的组织工作产生深刻的影响。
首先，新的社会对话委员会只关心经营者受特许权协议约束的关系网。因此，商标许可和分销合同似乎没有包括在内。特许权协议应被理解为由三项单独协议构成的特殊合同：商标许可协议、专有技术许可协议和商业或技术援助协议。然而，2016年8月8日的法律却造成了一些混乱，规定社会对话委员会所涉及的特许协议是“引用《法国商法典》第L330-3条”协议，尽管该条不仅没有界定特许合同的定义，而且可以适用于其他合同（独家分销协议），以确定该关系网是否属于该法的范围。
此外，根据该法案，只有包括“对特许经营企业的工作组织和条件有影响的条款”的具体特许协议才会受到关注。尽管该法没有界定这些条款，一方面，是否需要社会对话委员会取决于确定这些条款；另一方面，特许经营者在组织和管理其业务，包括在雇佣劳工事务方面，本质上独立于授予特许人。因此，有必要对所有特许经营协议进行就业审计（例如，如果条款规定营业时间或规定着装怎么办？），以确定该关系网是否属于该法的范围。
最后，只有在法国雇用至少300名（全职）工作人员的特许经营关系网才要求设立社会对话委员会。这似乎不包括特许经营人的雇员或不受特许经营协议约束的经营者的雇员(例如受商标许可合同约束的经营者)。
意味着长期谈判的实现
即使满足了法律要求，授予特许人也没有义务自发成立社会对话委员会。然而，一旦工会要求成立社会对话委员会，授予特许人就有义务积极参加该行业发起的谈判，与所有特许经营者核实其关系网上的雇员人数是否达到300人的门槛，然后建立一个由雇员（工会）代表和雇主（授予特许人和特许经营人）代表组成的“谈判论坛”，用来达成创建和组织未来社会对话委员会的协议。
与工会和特许经营者的谈判将在6达成协议但须经授予特许人、工会和至少30%的特许经营者(占关系网雇员的30%)的同意。该协议应确定社会对话委员会的组成、其成员的任职方式、任期、会议的频率、如果需要，雇员可以为委员会贡献多长时间、委员会实现其宗旨所需的物质或财政手段、以及如何处理费用和代表的旅费和生活津贴等问题。最后一个问题可能不仅是授予特许人关注的一个主要问题，而且也是特许经营人-雇主关注的一个主要方面。由于没有达成这样的协议，该法令规定设立社会对话委员会，其中有几项严格和最低限度的规定，可能会给授予特许人造成不合理的负担。
一旦成立，内部规则将确切界定社会对话委员会的运作方式（所需的多数人、会议通知和引荐来源、讨论内容的公布等）。
无事生非？
社会对话委员会无权调查案件或作出具有约束力的裁决，但社会对话委员会必须让大家知道特许经营者加盟或离开销售关系网的情况，以及“授予特许者的决定，易于影响到特许经营者雇员的数量和结构、工作时间或就业、工作和职业培训条件”。
社会对话委员会还可就如何改善贯穿整个关系网的条件提出建议。
社会对话委员会的影响终究相当有限，但授予特许人必须认真掌握和控制规则的实施，以避免损失自己的特许经营商的时间和精力以及关系网的混乱。
Not what you would expect
When can you terminate, how should you terminate, and how much are you exposed?!
The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.
This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.
However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.
In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.
Nevertheless, often the international corporation decides for various reasons (such as establishing an “in-house” operation” in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.
What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?
Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.
Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.
As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.
The truth is the reasonability of the due notice varies from case to case!
However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to “justify” avoiding a due notice period or adequate compensation.
In this respect, in many cases simple “non-satisfaction” was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.
There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.
Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.
Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.
The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.
In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.
越南 
巴西 
沙特阿拉伯 
Finland 
埃及 
写信给 Christophe
Israel – Termination of international business
2018年9月4日
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以色列
- 分销协议
- 诉讼
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).
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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.
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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.
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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:
- 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.
- 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.
- 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.
- 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.
- Costs are reasonable and known in advance.
- And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.
To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project
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:
- 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.
- 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.
- c) Product registration.
For the supplier:
- a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
- b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
- c) Product Recall.
- d) Lead Time.
- e) Delays.
- f) Stock conditions.
For the distributor:
- a) Returns.
- b) Clientele compensation.
- c) Defective product.
- 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.
法国是特许经营关系网的大市场，近2000家特许经营关系网处于运营状态。这是最成功的商业发展计划之一。
特许人必须主要遵守法国关于预先披露信息的规定以及法国和欧盟的竞争条例等规定。虽然对授予特许者来说，对关系网质量和品牌形象的控制是一个非常重要且合法的问题，但授予特许者不能过多地干预特许经营人的日常活动，因为特许经营人是独立商家。因此，授予特许人与特许经营人之间的关系只能建立在商法的基础上，而不能建立在劳动法的基础上。然而，法国最近的规定将导致授予特许者与特许经营者和他们的雇员一起实施某些劳动法。
在法国经营特许经营关系网的外国特许经营者确实必须知道如何应对《劳动法》（2016年8月8日）及其法令（2017年5月4日）所带来的限制，并自2017年5月7日起生效，该法令涉及为整个特许经营关系网设立一个雇员论坛。事实上，这个社会对话委员会可以对特许经营关系网的组织工作产生深刻的影响。
首先，新的社会对话委员会只关心经营者受特许权协议约束的关系网。因此，商标许可和分销合同似乎没有包括在内。特许权协议应被理解为由三项单独协议构成的特殊合同：商标许可协议、专有技术许可协议和商业或技术援助协议。然而，2016年8月8日的法律却造成了一些混乱，规定社会对话委员会所涉及的特许协议是“引用《法国商法典》第L330-3条”协议，尽管该条不仅没有界定特许合同的定义，而且可以适用于其他合同（独家分销协议），以确定该关系网是否属于该法的范围。
此外，根据该法案，只有包括“对特许经营企业的工作组织和条件有影响的条款”的具体特许协议才会受到关注。尽管该法没有界定这些条款，一方面，是否需要社会对话委员会取决于确定这些条款；另一方面，特许经营者在组织和管理其业务，包括在雇佣劳工事务方面，本质上独立于授予特许人。因此，有必要对所有特许经营协议进行就业审计（例如，如果条款规定营业时间或规定着装怎么办？），以确定该关系网是否属于该法的范围。
最后，只有在法国雇用至少300名（全职）工作人员的特许经营关系网才要求设立社会对话委员会。这似乎不包括特许经营人的雇员或不受特许经营协议约束的经营者的雇员(例如受商标许可合同约束的经营者)。
意味着长期谈判的实现
即使满足了法律要求，授予特许人也没有义务自发成立社会对话委员会。然而，一旦工会要求成立社会对话委员会，授予特许人就有义务积极参加该行业发起的谈判，与所有特许经营者核实其关系网上的雇员人数是否达到300人的门槛，然后建立一个由雇员（工会）代表和雇主（授予特许人和特许经营人）代表组成的“谈判论坛”，用来达成创建和组织未来社会对话委员会的协议。
与工会和特许经营者的谈判将在6达成协议但须经授予特许人、工会和至少30%的特许经营者(占关系网雇员的30%)的同意。该协议应确定社会对话委员会的组成、其成员的任职方式、任期、会议的频率、如果需要，雇员可以为委员会贡献多长时间、委员会实现其宗旨所需的物质或财政手段、以及如何处理费用和代表的旅费和生活津贴等问题。最后一个问题可能不仅是授予特许人关注的一个主要问题，而且也是特许经营人-雇主关注的一个主要方面。由于没有达成这样的协议，该法令规定设立社会对话委员会，其中有几项严格和最低限度的规定，可能会给授予特许人造成不合理的负担。
一旦成立，内部规则将确切界定社会对话委员会的运作方式（所需的多数人、会议通知和引荐来源、讨论内容的公布等）。
无事生非？
社会对话委员会无权调查案件或作出具有约束力的裁决，但社会对话委员会必须让大家知道特许经营者加盟或离开销售关系网的情况，以及“授予特许者的决定，易于影响到特许经营者雇员的数量和结构、工作时间或就业、工作和职业培训条件”。
社会对话委员会还可就如何改善贯穿整个关系网的条件提出建议。
社会对话委员会的影响终究相当有限，但授予特许人必须认真掌握和控制规则的实施，以避免损失自己的特许经营商的时间和精力以及关系网的混乱。
Not what you would expect
When can you terminate, how should you terminate, and how much are you exposed?!
The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.
This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.
However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.
In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.
Nevertheless, often the international corporation decides for various reasons (such as establishing an “in-house” operation” in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.
What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?
Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.
Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.
As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.
The truth is the reasonability of the due notice varies from case to case!
However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to “justify” avoiding a due notice period or adequate compensation.
In this respect, in many cases simple “non-satisfaction” was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.
There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.
Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.
Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.
The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.
In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.
写信给 Benjamin
Sales Distribution Agreement – Goods or Services?
2018年8月28日
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意大利
- 分销协议
- 诉讼
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).
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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.
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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.
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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:
- 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.
- 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.
- 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.
- 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.
- Costs are reasonable and known in advance.
- And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.
To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project
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:
- 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.
- 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.
- c) Product registration.
For the supplier:
- a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
- b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
- c) Product Recall.
- d) Lead Time.
- e) Delays.
- f) Stock conditions.
For the distributor:
- a) Returns.
- b) Clientele compensation.
- c) Defective product.
- 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.
法国是特许经营关系网的大市场，近2000家特许经营关系网处于运营状态。这是最成功的商业发展计划之一。
特许人必须主要遵守法国关于预先披露信息的规定以及法国和欧盟的竞争条例等规定。虽然对授予特许者来说，对关系网质量和品牌形象的控制是一个非常重要且合法的问题，但授予特许者不能过多地干预特许经营人的日常活动，因为特许经营人是独立商家。因此，授予特许人与特许经营人之间的关系只能建立在商法的基础上，而不能建立在劳动法的基础上。然而，法国最近的规定将导致授予特许者与特许经营者和他们的雇员一起实施某些劳动法。
在法国经营特许经营关系网的外国特许经营者确实必须知道如何应对《劳动法》（2016年8月8日）及其法令（2017年5月4日）所带来的限制，并自2017年5月7日起生效，该法令涉及为整个特许经营关系网设立一个雇员论坛。事实上，这个社会对话委员会可以对特许经营关系网的组织工作产生深刻的影响。
首先，新的社会对话委员会只关心经营者受特许权协议约束的关系网。因此，商标许可和分销合同似乎没有包括在内。特许权协议应被理解为由三项单独协议构成的特殊合同：商标许可协议、专有技术许可协议和商业或技术援助协议。然而，2016年8月8日的法律却造成了一些混乱，规定社会对话委员会所涉及的特许协议是“引用《法国商法典》第L330-3条”协议，尽管该条不仅没有界定特许合同的定义，而且可以适用于其他合同（独家分销协议），以确定该关系网是否属于该法的范围。
此外，根据该法案，只有包括“对特许经营企业的工作组织和条件有影响的条款”的具体特许协议才会受到关注。尽管该法没有界定这些条款，一方面，是否需要社会对话委员会取决于确定这些条款；另一方面，特许经营者在组织和管理其业务，包括在雇佣劳工事务方面，本质上独立于授予特许人。因此，有必要对所有特许经营协议进行就业审计（例如，如果条款规定营业时间或规定着装怎么办？），以确定该关系网是否属于该法的范围。
最后，只有在法国雇用至少300名（全职）工作人员的特许经营关系网才要求设立社会对话委员会。这似乎不包括特许经营人的雇员或不受特许经营协议约束的经营者的雇员(例如受商标许可合同约束的经营者)。
意味着长期谈判的实现
即使满足了法律要求，授予特许人也没有义务自发成立社会对话委员会。然而，一旦工会要求成立社会对话委员会，授予特许人就有义务积极参加该行业发起的谈判，与所有特许经营者核实其关系网上的雇员人数是否达到300人的门槛，然后建立一个由雇员（工会）代表和雇主（授予特许人和特许经营人）代表组成的“谈判论坛”，用来达成创建和组织未来社会对话委员会的协议。
与工会和特许经营者的谈判将在6达成协议但须经授予特许人、工会和至少30%的特许经营者(占关系网雇员的30%)的同意。该协议应确定社会对话委员会的组成、其成员的任职方式、任期、会议的频率、如果需要，雇员可以为委员会贡献多长时间、委员会实现其宗旨所需的物质或财政手段、以及如何处理费用和代表的旅费和生活津贴等问题。最后一个问题可能不仅是授予特许人关注的一个主要问题，而且也是特许经营人-雇主关注的一个主要方面。由于没有达成这样的协议，该法令规定设立社会对话委员会，其中有几项严格和最低限度的规定，可能会给授予特许人造成不合理的负担。
一旦成立，内部规则将确切界定社会对话委员会的运作方式（所需的多数人、会议通知和引荐来源、讨论内容的公布等）。
无事生非？
社会对话委员会无权调查案件或作出具有约束力的裁决，但社会对话委员会必须让大家知道特许经营者加盟或离开销售关系网的情况，以及“授予特许者的决定，易于影响到特许经营者雇员的数量和结构、工作时间或就业、工作和职业培训条件”。
社会对话委员会还可就如何改善贯穿整个关系网的条件提出建议。
社会对话委员会的影响终究相当有限，但授予特许人必须认真掌握和控制规则的实施，以避免损失自己的特许经营商的时间和精力以及关系网的混乱。
Not what you would expect
When can you terminate, how should you terminate, and how much are you exposed?!
The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.
This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.
However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.
In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.
Nevertheless, often the international corporation decides for various reasons (such as establishing an “in-house” operation” in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.
What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?
Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.
Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.
As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.
The truth is the reasonability of the due notice varies from case to case!
However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to “justify” avoiding a due notice period or adequate compensation.
In this respect, in many cases simple “non-satisfaction” was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.
There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.
Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.
Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.
The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.
In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.
写信给 Irene
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
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德国
- 分销协议
- 电子商务
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).
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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.
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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.
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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:
- 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.
- 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.
- 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.
- 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.
- Costs are reasonable and known in advance.
- And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.
To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project
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:
- 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.
- 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.
- c) Product registration.
For the supplier:
- a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
- b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
- c) Product Recall.
- d) Lead Time.
- e) Delays.
- f) Stock conditions.
For the distributor:
- a) Returns.
- b) Clientele compensation.
- c) Defective product.
- 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.
法国是特许经营关系网的大市场，近2000家特许经营关系网处于运营状态。这是最成功的商业发展计划之一。
特许人必须主要遵守法国关于预先披露信息的规定以及法国和欧盟的竞争条例等规定。虽然对授予特许者来说，对关系网质量和品牌形象的控制是一个非常重要且合法的问题，但授予特许者不能过多地干预特许经营人的日常活动，因为特许经营人是独立商家。因此，授予特许人与特许经营人之间的关系只能建立在商法的基础上，而不能建立在劳动法的基础上。然而，法国最近的规定将导致授予特许者与特许经营者和他们的雇员一起实施某些劳动法。
在法国经营特许经营关系网的外国特许经营者确实必须知道如何应对《劳动法》（2016年8月8日）及其法令（2017年5月4日）所带来的限制，并自2017年5月7日起生效，该法令涉及为整个特许经营关系网设立一个雇员论坛。事实上，这个社会对话委员会可以对特许经营关系网的组织工作产生深刻的影响。
首先，新的社会对话委员会只关心经营者受特许权协议约束的关系网。因此，商标许可和分销合同似乎没有包括在内。特许权协议应被理解为由三项单独协议构成的特殊合同：商标许可协议、专有技术许可协议和商业或技术援助协议。然而，2016年8月8日的法律却造成了一些混乱，规定社会对话委员会所涉及的特许协议是“引用《法国商法典》第L330-3条”协议，尽管该条不仅没有界定特许合同的定义，而且可以适用于其他合同（独家分销协议），以确定该关系网是否属于该法的范围。
此外，根据该法案，只有包括“对特许经营企业的工作组织和条件有影响的条款”的具体特许协议才会受到关注。尽管该法没有界定这些条款，一方面，是否需要社会对话委员会取决于确定这些条款；另一方面，特许经营者在组织和管理其业务，包括在雇佣劳工事务方面，本质上独立于授予特许人。因此，有必要对所有特许经营协议进行就业审计（例如，如果条款规定营业时间或规定着装怎么办？），以确定该关系网是否属于该法的范围。
最后，只有在法国雇用至少300名（全职）工作人员的特许经营关系网才要求设立社会对话委员会。这似乎不包括特许经营人的雇员或不受特许经营协议约束的经营者的雇员(例如受商标许可合同约束的经营者)。
意味着长期谈判的实现
即使满足了法律要求，授予特许人也没有义务自发成立社会对话委员会。然而，一旦工会要求成立社会对话委员会，授予特许人就有义务积极参加该行业发起的谈判，与所有特许经营者核实其关系网上的雇员人数是否达到300人的门槛，然后建立一个由雇员（工会）代表和雇主（授予特许人和特许经营人）代表组成的“谈判论坛”，用来达成创建和组织未来社会对话委员会的协议。
与工会和特许经营者的谈判将在6达成协议但须经授予特许人、工会和至少30%的特许经营者(占关系网雇员的30%)的同意。该协议应确定社会对话委员会的组成、其成员的任职方式、任期、会议的频率、如果需要，雇员可以为委员会贡献多长时间、委员会实现其宗旨所需的物质或财政手段、以及如何处理费用和代表的旅费和生活津贴等问题。最后一个问题可能不仅是授予特许人关注的一个主要问题，而且也是特许经营人-雇主关注的一个主要方面。由于没有达成这样的协议，该法令规定设立社会对话委员会，其中有几项严格和最低限度的规定，可能会给授予特许人造成不合理的负担。
一旦成立，内部规则将确切界定社会对话委员会的运作方式（所需的多数人、会议通知和引荐来源、讨论内容的公布等）。
无事生非？
社会对话委员会无权调查案件或作出具有约束力的裁决，但社会对话委员会必须让大家知道特许经营者加盟或离开销售关系网的情况，以及“授予特许者的决定，易于影响到特许经营者雇员的数量和结构、工作时间或就业、工作和职业培训条件”。
社会对话委员会还可就如何改善贯穿整个关系网的条件提出建议。
社会对话委员会的影响终究相当有限，但授予特许人必须认真掌握和控制规则的实施，以避免损失自己的特许经营商的时间和精力以及关系网的混乱。
Not what you would expect
When can you terminate, how should you terminate, and how much are you exposed?!
The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.
This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.
However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.
In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.
Nevertheless, often the international corporation decides for various reasons (such as establishing an “in-house” operation” in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.
What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?
Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.
Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.
As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.
The truth is the reasonability of the due notice varies from case to case!
However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to “justify” avoiding a due notice period or adequate compensation.
In this respect, in many cases simple “non-satisfaction” was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.
There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.
Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.
Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.
The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.
In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.
写信给 Benedikt
Resale Price Maintenance – Exception for short-term promotions?
2018年8月12日
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德国
- 分销协议
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).
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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.
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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.
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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:
- 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.
- 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.
- 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.
- 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.
- Costs are reasonable and known in advance.
- And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.
To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project
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:
- 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.
- 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.
- c) Product registration.
For the supplier:
- a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
- b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
- c) Product Recall.
- d) Lead Time.
- e) Delays.
- f) Stock conditions.
For the distributor:
- a) Returns.
- b) Clientele compensation.
- c) Defective product.
- 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.
法国是特许经营关系网的大市场，近2000家特许经营关系网处于运营状态。这是最成功的商业发展计划之一。
特许人必须主要遵守法国关于预先披露信息的规定以及法国和欧盟的竞争条例等规定。虽然对授予特许者来说，对关系网质量和品牌形象的控制是一个非常重要且合法的问题，但授予特许者不能过多地干预特许经营人的日常活动，因为特许经营人是独立商家。因此，授予特许人与特许经营人之间的关系只能建立在商法的基础上，而不能建立在劳动法的基础上。然而，法国最近的规定将导致授予特许者与特许经营者和他们的雇员一起实施某些劳动法。
在法国经营特许经营关系网的外国特许经营者确实必须知道如何应对《劳动法》（2016年8月8日）及其法令（2017年5月4日）所带来的限制，并自2017年5月7日起生效，该法令涉及为整个特许经营关系网设立一个雇员论坛。事实上，这个社会对话委员会可以对特许经营关系网的组织工作产生深刻的影响。
首先，新的社会对话委员会只关心经营者受特许权协议约束的关系网。因此，商标许可和分销合同似乎没有包括在内。特许权协议应被理解为由三项单独协议构成的特殊合同：商标许可协议、专有技术许可协议和商业或技术援助协议。然而，2016年8月8日的法律却造成了一些混乱，规定社会对话委员会所涉及的特许协议是“引用《法国商法典》第L330-3条”协议，尽管该条不仅没有界定特许合同的定义，而且可以适用于其他合同（独家分销协议），以确定该关系网是否属于该法的范围。
此外，根据该法案，只有包括“对特许经营企业的工作组织和条件有影响的条款”的具体特许协议才会受到关注。尽管该法没有界定这些条款，一方面，是否需要社会对话委员会取决于确定这些条款；另一方面，特许经营者在组织和管理其业务，包括在雇佣劳工事务方面，本质上独立于授予特许人。因此，有必要对所有特许经营协议进行就业审计（例如，如果条款规定营业时间或规定着装怎么办？），以确定该关系网是否属于该法的范围。
最后，只有在法国雇用至少300名（全职）工作人员的特许经营关系网才要求设立社会对话委员会。这似乎不包括特许经营人的雇员或不受特许经营协议约束的经营者的雇员(例如受商标许可合同约束的经营者)。
意味着长期谈判的实现
即使满足了法律要求，授予特许人也没有义务自发成立社会对话委员会。然而，一旦工会要求成立社会对话委员会，授予特许人就有义务积极参加该行业发起的谈判，与所有特许经营者核实其关系网上的雇员人数是否达到300人的门槛，然后建立一个由雇员（工会）代表和雇主（授予特许人和特许经营人）代表组成的“谈判论坛”，用来达成创建和组织未来社会对话委员会的协议。
与工会和特许经营者的谈判将在6达成协议但须经授予特许人、工会和至少30%的特许经营者(占关系网雇员的30%)的同意。该协议应确定社会对话委员会的组成、其成员的任职方式、任期、会议的频率、如果需要，雇员可以为委员会贡献多长时间、委员会实现其宗旨所需的物质或财政手段、以及如何处理费用和代表的旅费和生活津贴等问题。最后一个问题可能不仅是授予特许人关注的一个主要问题，而且也是特许经营人-雇主关注的一个主要方面。由于没有达成这样的协议，该法令规定设立社会对话委员会，其中有几项严格和最低限度的规定，可能会给授予特许人造成不合理的负担。
一旦成立，内部规则将确切界定社会对话委员会的运作方式（所需的多数人、会议通知和引荐来源、讨论内容的公布等）。
无事生非？
社会对话委员会无权调查案件或作出具有约束力的裁决，但社会对话委员会必须让大家知道特许经营者加盟或离开销售关系网的情况，以及“授予特许者的决定，易于影响到特许经营者雇员的数量和结构、工作时间或就业、工作和职业培训条件”。
社会对话委员会还可就如何改善贯穿整个关系网的条件提出建议。
社会对话委员会的影响终究相当有限，但授予特许人必须认真掌握和控制规则的实施，以避免损失自己的特许经营商的时间和精力以及关系网的混乱。
Not what you would expect
When can you terminate, how should you terminate, and how much are you exposed?!
The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.
This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.
However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.
In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.
Nevertheless, often the international corporation decides for various reasons (such as establishing an “in-house” operation” in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.
What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?
Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.
Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.
As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.
The truth is the reasonability of the due notice varies from case to case!
However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to “justify” avoiding a due notice period or adequate compensation.
In this respect, in many cases simple “non-satisfaction” was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.
There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.
Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.
Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.
The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.
In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.
写信给 Benedikt
德国——分销协议的终止：经销商能要求交货吗？
2018年7月17日
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德国
- 分销协议
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).
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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.
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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.
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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:
- 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.
- 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.
- 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.
- 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.
- Costs are reasonable and known in advance.
- And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.
To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project
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:
- 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.
- 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.
- c) Product registration.
For the supplier:
- a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
- b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
- c) Product Recall.
- d) Lead Time.
- e) Delays.
- f) Stock conditions.
For the distributor:
- a) Returns.
- b) Clientele compensation.
- c) Defective product.
- 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.
法国是特许经营关系网的大市场，近2000家特许经营关系网处于运营状态。这是最成功的商业发展计划之一。
特许人必须主要遵守法国关于预先披露信息的规定以及法国和欧盟的竞争条例等规定。虽然对授予特许者来说，对关系网质量和品牌形象的控制是一个非常重要且合法的问题，但授予特许者不能过多地干预特许经营人的日常活动，因为特许经营人是独立商家。因此，授予特许人与特许经营人之间的关系只能建立在商法的基础上，而不能建立在劳动法的基础上。然而，法国最近的规定将导致授予特许者与特许经营者和他们的雇员一起实施某些劳动法。
在法国经营特许经营关系网的外国特许经营者确实必须知道如何应对《劳动法》（2016年8月8日）及其法令（2017年5月4日）所带来的限制，并自2017年5月7日起生效，该法令涉及为整个特许经营关系网设立一个雇员论坛。事实上，这个社会对话委员会可以对特许经营关系网的组织工作产生深刻的影响。
首先，新的社会对话委员会只关心经营者受特许权协议约束的关系网。因此，商标许可和分销合同似乎没有包括在内。特许权协议应被理解为由三项单独协议构成的特殊合同：商标许可协议、专有技术许可协议和商业或技术援助协议。然而，2016年8月8日的法律却造成了一些混乱，规定社会对话委员会所涉及的特许协议是“引用《法国商法典》第L330-3条”协议，尽管该条不仅没有界定特许合同的定义，而且可以适用于其他合同（独家分销协议），以确定该关系网是否属于该法的范围。
此外，根据该法案，只有包括“对特许经营企业的工作组织和条件有影响的条款”的具体特许协议才会受到关注。尽管该法没有界定这些条款，一方面，是否需要社会对话委员会取决于确定这些条款；另一方面，特许经营者在组织和管理其业务，包括在雇佣劳工事务方面，本质上独立于授予特许人。因此，有必要对所有特许经营协议进行就业审计（例如，如果条款规定营业时间或规定着装怎么办？），以确定该关系网是否属于该法的范围。
最后，只有在法国雇用至少300名（全职）工作人员的特许经营关系网才要求设立社会对话委员会。这似乎不包括特许经营人的雇员或不受特许经营协议约束的经营者的雇员(例如受商标许可合同约束的经营者)。
意味着长期谈判的实现
即使满足了法律要求，授予特许人也没有义务自发成立社会对话委员会。然而，一旦工会要求成立社会对话委员会，授予特许人就有义务积极参加该行业发起的谈判，与所有特许经营者核实其关系网上的雇员人数是否达到300人的门槛，然后建立一个由雇员（工会）代表和雇主（授予特许人和特许经营人）代表组成的“谈判论坛”，用来达成创建和组织未来社会对话委员会的协议。
与工会和特许经营者的谈判将在6达成协议但须经授予特许人、工会和至少30%的特许经营者(占关系网雇员的30%)的同意。该协议应确定社会对话委员会的组成、其成员的任职方式、任期、会议的频率、如果需要，雇员可以为委员会贡献多长时间、委员会实现其宗旨所需的物质或财政手段、以及如何处理费用和代表的旅费和生活津贴等问题。最后一个问题可能不仅是授予特许人关注的一个主要问题，而且也是特许经营人-雇主关注的一个主要方面。由于没有达成这样的协议，该法令规定设立社会对话委员会，其中有几项严格和最低限度的规定，可能会给授予特许人造成不合理的负担。
一旦成立，内部规则将确切界定社会对话委员会的运作方式（所需的多数人、会议通知和引荐来源、讨论内容的公布等）。
无事生非？
社会对话委员会无权调查案件或作出具有约束力的裁决，但社会对话委员会必须让大家知道特许经营者加盟或离开销售关系网的情况，以及“授予特许者的决定，易于影响到特许经营者雇员的数量和结构、工作时间或就业、工作和职业培训条件”。
社会对话委员会还可就如何改善贯穿整个关系网的条件提出建议。
社会对话委员会的影响终究相当有限，但授予特许人必须认真掌握和控制规则的实施，以避免损失自己的特许经营商的时间和精力以及关系网的混乱。
Not what you would expect
When can you terminate, how should you terminate, and how much are you exposed?!
The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.
This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.
However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.
In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.
Nevertheless, often the international corporation decides for various reasons (such as establishing an “in-house” operation” in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.
What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?
Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.
Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.
As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.
The truth is the reasonability of the due notice varies from case to case!
However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to “justify” avoiding a due notice period or adequate compensation.
In this respect, in many cases simple “non-satisfaction” was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.
There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.
Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.
Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.
The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.
In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.
写信给 Benedikt
欧盟地域封锁禁令–电子商务网站的新战略
2018年6月14日
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欧洲 -
法国
- 分销协议
- 反垄断
- 电子商务
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).
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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.
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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.
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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:
- 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.
- 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.
- 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.
- 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.
- Costs are reasonable and known in advance.
- And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.
To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project
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:
- 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.
- 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.
- c) Product registration.
For the supplier:
- a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
- b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
- c) Product Recall.
- d) Lead Time.
- e) Delays.
- f) Stock conditions.
For the distributor:
- a) Returns.
- b) Clientele compensation.
- c) Defective product.
- 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.
法国是特许经营关系网的大市场，近2000家特许经营关系网处于运营状态。这是最成功的商业发展计划之一。
特许人必须主要遵守法国关于预先披露信息的规定以及法国和欧盟的竞争条例等规定。虽然对授予特许者来说，对关系网质量和品牌形象的控制是一个非常重要且合法的问题，但授予特许者不能过多地干预特许经营人的日常活动，因为特许经营人是独立商家。因此，授予特许人与特许经营人之间的关系只能建立在商法的基础上，而不能建立在劳动法的基础上。然而，法国最近的规定将导致授予特许者与特许经营者和他们的雇员一起实施某些劳动法。
在法国经营特许经营关系网的外国特许经营者确实必须知道如何应对《劳动法》（2016年8月8日）及其法令（2017年5月4日）所带来的限制，并自2017年5月7日起生效，该法令涉及为整个特许经营关系网设立一个雇员论坛。事实上，这个社会对话委员会可以对特许经营关系网的组织工作产生深刻的影响。
首先，新的社会对话委员会只关心经营者受特许权协议约束的关系网。因此，商标许可和分销合同似乎没有包括在内。特许权协议应被理解为由三项单独协议构成的特殊合同：商标许可协议、专有技术许可协议和商业或技术援助协议。然而，2016年8月8日的法律却造成了一些混乱，规定社会对话委员会所涉及的特许协议是“引用《法国商法典》第L330-3条”协议，尽管该条不仅没有界定特许合同的定义，而且可以适用于其他合同（独家分销协议），以确定该关系网是否属于该法的范围。
此外，根据该法案，只有包括“对特许经营企业的工作组织和条件有影响的条款”的具体特许协议才会受到关注。尽管该法没有界定这些条款，一方面，是否需要社会对话委员会取决于确定这些条款；另一方面，特许经营者在组织和管理其业务，包括在雇佣劳工事务方面，本质上独立于授予特许人。因此，有必要对所有特许经营协议进行就业审计（例如，如果条款规定营业时间或规定着装怎么办？），以确定该关系网是否属于该法的范围。
最后，只有在法国雇用至少300名（全职）工作人员的特许经营关系网才要求设立社会对话委员会。这似乎不包括特许经营人的雇员或不受特许经营协议约束的经营者的雇员(例如受商标许可合同约束的经营者)。
意味着长期谈判的实现
即使满足了法律要求，授予特许人也没有义务自发成立社会对话委员会。然而，一旦工会要求成立社会对话委员会，授予特许人就有义务积极参加该行业发起的谈判，与所有特许经营者核实其关系网上的雇员人数是否达到300人的门槛，然后建立一个由雇员（工会）代表和雇主（授予特许人和特许经营人）代表组成的“谈判论坛”，用来达成创建和组织未来社会对话委员会的协议。
与工会和特许经营者的谈判将在6达成协议但须经授予特许人、工会和至少30%的特许经营者(占关系网雇员的30%)的同意。该协议应确定社会对话委员会的组成、其成员的任职方式、任期、会议的频率、如果需要，雇员可以为委员会贡献多长时间、委员会实现其宗旨所需的物质或财政手段、以及如何处理费用和代表的旅费和生活津贴等问题。最后一个问题可能不仅是授予特许人关注的一个主要问题，而且也是特许经营人-雇主关注的一个主要方面。由于没有达成这样的协议，该法令规定设立社会对话委员会，其中有几项严格和最低限度的规定，可能会给授予特许人造成不合理的负担。
一旦成立，内部规则将确切界定社会对话委员会的运作方式（所需的多数人、会议通知和引荐来源、讨论内容的公布等）。
无事生非？
社会对话委员会无权调查案件或作出具有约束力的裁决，但社会对话委员会必须让大家知道特许经营者加盟或离开销售关系网的情况，以及“授予特许者的决定，易于影响到特许经营者雇员的数量和结构、工作时间或就业、工作和职业培训条件”。
社会对话委员会还可就如何改善贯穿整个关系网的条件提出建议。
社会对话委员会的影响终究相当有限，但授予特许人必须认真掌握和控制规则的实施，以避免损失自己的特许经营商的时间和精力以及关系网的混乱。
Not what you would expect
When can you terminate, how should you terminate, and how much are you exposed?!
The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.
This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.
However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.
In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.
Nevertheless, often the international corporation decides for various reasons (such as establishing an “in-house” operation” in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.
What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?
Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.
Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.
As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.
The truth is the reasonability of the due notice varies from case to case!
However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to “justify” avoiding a due notice period or adequate compensation.
In this respect, in many cases simple “non-satisfaction” was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.
There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.
Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.
Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.
The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.
In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.
写信给 Christophe
Drafting the mediation clause in franchise agreements
2018年5月31日
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西班牙
- 分销协议
- 特许经营
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).
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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.
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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.
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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:
- 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.
- 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.
- 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.
- 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.
- Costs are reasonable and known in advance.
- And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.
To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project
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:
- 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.
- 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.
- c) Product registration.
For the supplier:
- a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
- b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
- c) Product Recall.
- d) Lead Time.
- e) Delays.
- f) Stock conditions.
For the distributor:
- a) Returns.
- b) Clientele compensation.
- c) Defective product.
- 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.
法国是特许经营关系网的大市场，近2000家特许经营关系网处于运营状态。这是最成功的商业发展计划之一。
特许人必须主要遵守法国关于预先披露信息的规定以及法国和欧盟的竞争条例等规定。虽然对授予特许者来说，对关系网质量和品牌形象的控制是一个非常重要且合法的问题，但授予特许者不能过多地干预特许经营人的日常活动，因为特许经营人是独立商家。因此，授予特许人与特许经营人之间的关系只能建立在商法的基础上，而不能建立在劳动法的基础上。然而，法国最近的规定将导致授予特许者与特许经营者和他们的雇员一起实施某些劳动法。
在法国经营特许经营关系网的外国特许经营者确实必须知道如何应对《劳动法》（2016年8月8日）及其法令（2017年5月4日）所带来的限制，并自2017年5月7日起生效，该法令涉及为整个特许经营关系网设立一个雇员论坛。事实上，这个社会对话委员会可以对特许经营关系网的组织工作产生深刻的影响。
首先，新的社会对话委员会只关心经营者受特许权协议约束的关系网。因此，商标许可和分销合同似乎没有包括在内。特许权协议应被理解为由三项单独协议构成的特殊合同：商标许可协议、专有技术许可协议和商业或技术援助协议。然而，2016年8月8日的法律却造成了一些混乱，规定社会对话委员会所涉及的特许协议是“引用《法国商法典》第L330-3条”协议，尽管该条不仅没有界定特许合同的定义，而且可以适用于其他合同（独家分销协议），以确定该关系网是否属于该法的范围。
此外，根据该法案，只有包括“对特许经营企业的工作组织和条件有影响的条款”的具体特许协议才会受到关注。尽管该法没有界定这些条款，一方面，是否需要社会对话委员会取决于确定这些条款；另一方面，特许经营者在组织和管理其业务，包括在雇佣劳工事务方面，本质上独立于授予特许人。因此，有必要对所有特许经营协议进行就业审计（例如，如果条款规定营业时间或规定着装怎么办？），以确定该关系网是否属于该法的范围。
最后，只有在法国雇用至少300名（全职）工作人员的特许经营关系网才要求设立社会对话委员会。这似乎不包括特许经营人的雇员或不受特许经营协议约束的经营者的雇员(例如受商标许可合同约束的经营者)。
意味着长期谈判的实现
即使满足了法律要求，授予特许人也没有义务自发成立社会对话委员会。然而，一旦工会要求成立社会对话委员会，授予特许人就有义务积极参加该行业发起的谈判，与所有特许经营者核实其关系网上的雇员人数是否达到300人的门槛，然后建立一个由雇员（工会）代表和雇主（授予特许人和特许经营人）代表组成的“谈判论坛”，用来达成创建和组织未来社会对话委员会的协议。
与工会和特许经营者的谈判将在6达成协议但须经授予特许人、工会和至少30%的特许经营者(占关系网雇员的30%)的同意。该协议应确定社会对话委员会的组成、其成员的任职方式、任期、会议的频率、如果需要，雇员可以为委员会贡献多长时间、委员会实现其宗旨所需的物质或财政手段、以及如何处理费用和代表的旅费和生活津贴等问题。最后一个问题可能不仅是授予特许人关注的一个主要问题，而且也是特许经营人-雇主关注的一个主要方面。由于没有达成这样的协议，该法令规定设立社会对话委员会，其中有几项严格和最低限度的规定，可能会给授予特许人造成不合理的负担。
一旦成立，内部规则将确切界定社会对话委员会的运作方式（所需的多数人、会议通知和引荐来源、讨论内容的公布等）。
无事生非？
社会对话委员会无权调查案件或作出具有约束力的裁决，但社会对话委员会必须让大家知道特许经营者加盟或离开销售关系网的情况，以及“授予特许者的决定，易于影响到特许经营者雇员的数量和结构、工作时间或就业、工作和职业培训条件”。
社会对话委员会还可就如何改善贯穿整个关系网的条件提出建议。
社会对话委员会的影响终究相当有限，但授予特许人必须认真掌握和控制规则的实施，以避免损失自己的特许经营商的时间和精力以及关系网的混乱。
Not what you would expect
When can you terminate, how should you terminate, and how much are you exposed?!
The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.
This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.
However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.
In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.
Nevertheless, often the international corporation decides for various reasons (such as establishing an “in-house” operation” in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.
What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?
Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.
Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.
As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.
The truth is the reasonability of the due notice varies from case to case!
However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to “justify” avoiding a due notice period or adequate compensation.
In this respect, in many cases simple “non-satisfaction” was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.
There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.
Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.
Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.
The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.
In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.
写信给 Ignacio
Germany – Distribution of original products and gray market
2018年5月22日
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德国
- 分销协议
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).
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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.
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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.
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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:
- 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.
- 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.
- 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.
- 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.
- Costs are reasonable and known in advance.
- And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.
To have further information about the clause to use in the contracts, the list of specialized arbitrators, their skills, experience and complete CV, and the recommendations for expedited arbitration, you can follow the link: https://www.idiproject.com/content/idarb-idi-arbitration-project
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:
- 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.
- 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.
- c) Product registration.
For the supplier:
- a) Payment (if international, without taxes, provisions to receive full amount with no deduction or withholding).
- b) Currency (due to unstable of Argentine Pesos, it’s important to establish it and price increase if necessary).
- c) Product Recall.
- d) Lead Time.
- e) Delays.
- f) Stock conditions.
For the distributor:
- a) Returns.
- b) Clientele compensation.
- c) Defective product.
- 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.
法国是特许经营关系网的大市场，近2000家特许经营关系网处于运营状态。这是最成功的商业发展计划之一。
特许人必须主要遵守法国关于预先披露信息的规定以及法国和欧盟的竞争条例等规定。虽然对授予特许者来说，对关系网质量和品牌形象的控制是一个非常重要且合法的问题，但授予特许者不能过多地干预特许经营人的日常活动，因为特许经营人是独立商家。因此，授予特许人与特许经营人之间的关系只能建立在商法的基础上，而不能建立在劳动法的基础上。然而，法国最近的规定将导致授予特许者与特许经营者和他们的雇员一起实施某些劳动法。
在法国经营特许经营关系网的外国特许经营者确实必须知道如何应对《劳动法》（2016年8月8日）及其法令（2017年5月4日）所带来的限制，并自2017年5月7日起生效，该法令涉及为整个特许经营关系网设立一个雇员论坛。事实上，这个社会对话委员会可以对特许经营关系网的组织工作产生深刻的影响。
首先，新的社会对话委员会只关心经营者受特许权协议约束的关系网。因此，商标许可和分销合同似乎没有包括在内。特许权协议应被理解为由三项单独协议构成的特殊合同：商标许可协议、专有技术许可协议和商业或技术援助协议。然而，2016年8月8日的法律却造成了一些混乱，规定社会对话委员会所涉及的特许协议是“引用《法国商法典》第L330-3条”协议，尽管该条不仅没有界定特许合同的定义，而且可以适用于其他合同（独家分销协议），以确定该关系网是否属于该法的范围。
此外，根据该法案，只有包括“对特许经营企业的工作组织和条件有影响的条款”的具体特许协议才会受到关注。尽管该法没有界定这些条款，一方面，是否需要社会对话委员会取决于确定这些条款；另一方面，特许经营者在组织和管理其业务，包括在雇佣劳工事务方面，本质上独立于授予特许人。因此，有必要对所有特许经营协议进行就业审计（例如，如果条款规定营业时间或规定着装怎么办？），以确定该关系网是否属于该法的范围。
最后，只有在法国雇用至少300名（全职）工作人员的特许经营关系网才要求设立社会对话委员会。这似乎不包括特许经营人的雇员或不受特许经营协议约束的经营者的雇员(例如受商标许可合同约束的经营者)。
意味着长期谈判的实现
即使满足了法律要求，授予特许人也没有义务自发成立社会对话委员会。然而，一旦工会要求成立社会对话委员会，授予特许人就有义务积极参加该行业发起的谈判，与所有特许经营者核实其关系网上的雇员人数是否达到300人的门槛，然后建立一个由雇员（工会）代表和雇主（授予特许人和特许经营人）代表组成的“谈判论坛”，用来达成创建和组织未来社会对话委员会的协议。
与工会和特许经营者的谈判将在6达成协议但须经授予特许人、工会和至少30%的特许经营者(占关系网雇员的30%)的同意。该协议应确定社会对话委员会的组成、其成员的任职方式、任期、会议的频率、如果需要，雇员可以为委员会贡献多长时间、委员会实现其宗旨所需的物质或财政手段、以及如何处理费用和代表的旅费和生活津贴等问题。最后一个问题可能不仅是授予特许人关注的一个主要问题，而且也是特许经营人-雇主关注的一个主要方面。由于没有达成这样的协议，该法令规定设立社会对话委员会，其中有几项严格和最低限度的规定，可能会给授予特许人造成不合理的负担。
一旦成立，内部规则将确切界定社会对话委员会的运作方式（所需的多数人、会议通知和引荐来源、讨论内容的公布等）。
无事生非？
社会对话委员会无权调查案件或作出具有约束力的裁决，但社会对话委员会必须让大家知道特许经营者加盟或离开销售关系网的情况，以及“授予特许者的决定，易于影响到特许经营者雇员的数量和结构、工作时间或就业、工作和职业培训条件”。
社会对话委员会还可就如何改善贯穿整个关系网的条件提出建议。
社会对话委员会的影响终究相当有限，但授予特许人必须认真掌握和控制规则的实施，以避免损失自己的特许经营商的时间和精力以及关系网的混乱。
Not what you would expect
When can you terminate, how should you terminate, and how much are you exposed?!
The outcomes of termination of a business relationship with an Israeli counterpart in Israel arise again and again as a question in many disputes between International corporations and Israeli counterparts, such as distributors or franchisees.
This is mainly because Israeli law does not include specific laws regulating or regarding distribution or franchising or other kinds of business ventures (except a relatively new agency law – referring in a limited manner to specific kinds of agency only) – and thus disputes in said regards are determined based on the general principles of contract law, the contractual and factual bases – obviously resulting in considerable uncertainty as to specific matters.
However, substantial case law, such as in the matter of Johnson & Johnson International that ended up paying compensation in the equivalent to over 1.5 Million US$, indicates the basics and threshold of what can be expected in such disputes, and, if implemented wisely, may assist in planning the disengagement or termination of a business relationship, in a manner that would be the least costly for the terminating party and minimize its exposure to a lawsuit.
In many cases, domestic parties invest many years and/or fortunes, in order to penetrate the domestic market with the foreign service or products, and to promote sales in the subject region, for the benefit of both the international corporation and the domestic party.
Nevertheless, often the international corporation decides for various reasons (such as establishing an “in-house” operation” in the target location or substituting the distributor/franchisee) to terminate the oral or written contractual relationship.
What are the legal foundations involved in such termination as per due notice of termination and corresponding compensation – if at all?
Generally, this issue arises in cases in which the contract does not specify a period of the business relationship, and, as a principle of law, contracts may be terminated by reasonable notice and subject to the fundamental good faith principle.
Contracts are not perceived as binding upon the parties indefinitely. The question is always what is the reasonable time for termination notice, and is the termination done in good faith (which is always a tricky and vague issue). Compensation is commonly awarded in accordance with what the courts find as the due notice period that may also entail compensation for damages related to said breach.
As always, there are exceptions, such as breach of trust toward the manufacturer/franchisor, that may have great impact on any due notice obligations, as far as justification for immediate termination that can be deemed immune to breach of due notice or good faith obligations.
The truth is the reasonability of the due notice varies from case to case!
However, Israeli case law is extremely sensitive to the actual reasoning of termination and how genuine it is, as opposed to asserting a tactical breach argument in an attempt to “justify” avoiding a due notice period or adequate compensation.
In this respect, in many cases simple “non-satisfaction” was denied as a legitimate argument for breach of contract, while safeguarding the freedom of contracts and the right to terminate an ongoing contract with due notice and good faith.
There are various common parameters referred to in the case law, to determine the adequate time of due notice, including, for instance, the magnitude of investment; the time required for rearrangement of business towards the new situation (including time required to find an alternative supplier product which can be marketed); the magnitude of the product/service out of the entire distributor’s business, etc.
Time and again, although not as binding rule, the due notice period seems to be in the range of around 12 months, as a balance between the right of termination and the reasonable time for rearranging the business in light of the termination. There were, however, cases in which due notice for termination was deemed as short as three months and as long as two years – but these are rather exceptional.
Another guiding point in the case law is the factor of exclusivity or non-exclusivity, as well as the concept that the longer the business relationship, the less the distributor/franchisee may expect compensation/reimbursement for investment – based on the concept that he has enjoyed the fruits of the investment.
The outcome of not providing such adequate due notice might result in actual compensation reflecting the loss of profit of the business in the last year before the termination, or for the whole term the court finds a due notice was in place, or, in cases of bad faith, even a longer period reflecting the damages.
In conclusion, given the legal regime in Israel, such exposure might be extremely considerable for any international or foreign business. It would, therefore, be vital and as a consequence of real value to plan the strategy of disengagement/termination of the business with the domestic counterpart in Israel, in advance and prior to executing it, and there are, indeed, adequate and wise strategies that may be implemented for the best result.
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