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NEW ISSUES IN INTERNATIONAL DISTRIBUTION
The new EC regulation on vertical restraints
How to deal with insolvency of distributors/franchisees
2010 Annual Meeting of the International Distribution Institute
FRIDAY 11 JUNE AND SATURDAY 12 JUNE 2010, TURIN (ITALY)
| IDI Conference | Programme | Registration | Practical Information | Full Programme PDF |
| CHAIRMAN | Fabio Bortolotti, Professor of Law, University of Torino; Buffa Bortolotti & Mathis, Torino; President IDI; Chair ICC Commission on Commercial Law and Practice (CLP); Member AIGI |
| 09:15-09:35 | Welcome |
| 09:35-09:50 |
Presentation of the IDI website. Silvia Bortolotti, Buffa Bortolotti & Mathis, Torino; Member of the IDI Council and Secretary General IDI |
| 09:50-10:10 |
The new block exemption regulation 330/2010. An overview of the main changes with respect to regulation 2790/1999. The drafting process and the main issues raised during the consultation process. The changes with respect to the previous regulation. The cars block exemption. Paolo Cesarini, DG Competition, European Commission |
| 10:10-10:30 |
The rules applicable to agency agreements. Is it
necessary to change all existing agreements? The new version of the Commission's guidelines on agency agreements. Is it appropriate to follow the Commission's guidelines? In the affirmative case, how to draft an agency agreement which would not infringe Article 81? Jaap van Till, Van Till Advocaten, Amsterdam |
| 10:30-10:50 |
The application of the 30% threshold to the distributor's
market and its practical consequences - Active and passive
sales. The block exemption does not apply to agreements which imply that a threshold of 30% of the market is exceeded. This rule applied, under regulation 2790/1999 only to the market share of the supplier. Now it extends also to the distributor's market, which may give rise to problems, since a distributor may have a strong position on a very limited geographic market. Laurent Flochel, Professor of Economics ; Vice President, Charles River Associates, Paris |
| 10:50-11:10 | Coffee break |
| 11:10-11:30 |
Drafting contract clauses in distribution and franchising contracts which comply with the new regulation 330/2010. After the entry into force of the new block exemption, it may be useful to begin working out contractual clauses which comply with the requirements of the European rules. Fabio Bortolotti,Professor of Law, University of Torino; Buffa Bortolotti & Mathis, Torino; Member AIGI |
| 11:30-12:30 |
PANEL on Internet sales under the new block exemption regulation 330/2010. Internet sales is becoming a "hot" issue in recent years. The European Commission seems to take a very strict position, whereby the freedom of a distributor (dealer, importer, franchisee) to sell through Internet should be almost unlimited. Suppliers who wish to have their products resold according to certain conditions, need to control Internet sales by their distributors and even to forbid them if this is not in accordance with their marketing needs. The panel will discuss these issues, also considering the jurisprudence of the Court of Justice and national courts. CHAIRMAN: Didier Ferrier, Professor of Law, University of Montpellier; Vice-President IDI Fabio Bortolotti, Professor of Law, University of Torino; Buffa Bortolotti & Mathis, Torino;; Member AIGI Daniela Della Rosa, General counsel, Gucci Spa, Firenze; Member AIGI Regula Walter, Richemont, Geneva Carl Zwisler, Gray, Plant, Mooty, Mooty and Bennett, PA, Washington DC |
| 12:30-13:00 | Discussion |
| 13:00-14:00 | Lunch |
| CHAIRMAN | Klaus Meyer Swantee, Retired Partner of Derks Star Busmann, Amsterdam. Member of the IDI Council |
| 14:00-14:30 |
How to deal with a distributor facing a critical financial situation? The view of two company lawyers. When a distributor is unable to pay the products supplied, the supplier is put before a difficult choice: he may accept postponement of payment and thus increase the distributor's financial exposure, or stop supplying, which may push the distributor towards bankruptcy. How to keep the distributor alive without increasing financial exposure: direct sales to customers with commission to the distributor; consignment stock; advance payment and payment guarantees for future supplies? Diego Saluzzo, General Counsel Iveco Group, Torino; Member AIGI Edoardo Betto, Legal Counsel, Piaggio S.p.A., Pontedera |
| 14:30-15:00 |
Minimizing risks in advance: possible
contractual solutions. Suppliers will try to reduce risks of insolvency through appropriate commercial means (advance payment, bank guarantees, etc.) and contractual solutions, like clauses permitting to suspend supplies in case of financial risk (even before breach of payment obligations) or justifying contract termination in case of non-payment or delayed payment. The members of the panel will discuss the various solutions and their practical experience. Silvia Bortolotti, Buffa Bortolotti & Mathis, Torino; Member of the IDI Council and Secretary General IDI Claudia Kolb, Legal and corporate department, Gucci Spa, Firenze |
| 15:00-15:20 |
A very critical situation: insolvency or bankruptcy of a master franchisee. The disappearance of a master franchisee can cause substantial problems to the master franchisor as well as to the franchised network. The speaker will examine the problems which arise in such context and the solutions which may be provided contractually in advance. Aldo Frignani, Professor of Law, University of Torino, Frignani e Associati, Torino; Member AIGI |
| 15:20-16:00 |
PANEL on the impact of the distributor's bankruptcy in different jurisdictions. The panel will address the following questions: in case of bankruptcy of the distributor, which transactions with the supplier can be revoked? Is it possible to terminate the contract and to appoint another distributor once bankruptcy has been declared? Is it possible to recover goods in his possession if there has been retention of title? Can the supplier be held responsible towards the creditors of the distributor if he has continued supplying notwithstanding the insolvency. CHAIRMAN: Edward Miller, Reedsmith, London Anders Fernlund, Advokatfirman NOVA AB, Stockholm Simon Hotte, Fidal, Lyon Paolo Lombardi, Buffa Bortolotti & Mathis, Torino Ingrid Meeussen, LVP Law, Brussels Olga Sztejnert, Drzewiecki, Tomaszek & Partners, Warsaw |
| 16:00-16:30 | Discussion |
AFTER THE AFTERNOON SESSION THE IDI COUNTRY EXPERTS WILL BE AVAILABLE FOR INDIVIDUAL CONTACTS WITH THE PARTICIPANTS.
The updated list of the country experts present at the conference and available for individual contacts can be found in this PDF document.
Request forms for meetings with the expert(s) will be enclosed in the informative sheets handed out at the conference.
In this general meeting, to which also non members are invited, the officers of IDI will inform the members about the current situation of IDI: the results achieved in 2009 and the plans for the following years.
The participants will be kindly invited to share their opinions about the activity of IDI and make suggestions for the future.
On Friday evening (June 11, 2010) a gala dinner will be held in the master apartment of Palazzo Saluzzo Paesana, one of the most beautiful XVIII century mansions of Torino. The dinner will be provided by the staff of a prestigious restaurant of the city. Reservations should be made in time due to the limited number of places.
The cost of the gala dinner is 100 EUR (plus 20% VAT).
The workshop aims at providing a practical information on the actual criteria applied by the courts when calculating the goodwill indemnity for agents (and for distributors, where applicable) and about possible means for limiting the amount in question.
| CHAIRMAN | Didier Ferreir, Professor of Law, University of Montpellier; Vice-President IDI |
| 09:30-09:50 |
Is arbitration always the appropriate solution for
resolving disputes? Arbitration is frequently used for distributorship contracts and master franchise agreements, where considerable amounts of money can be involved. Less frequent for commercial agency, for which "normal" arbitration may have disproportionate costs, but the problem may be overcome through forms of simplified arbitration. The great advantage of arbitration is that it gives the opportunity to be judged by persons having actual knowledge of the issues involved Osvaldo Marzorati,Allende&,Brea, Buenos Aires |
| 09:50-10:00 |
A research on arbitral jurisprudence on international distribution. Presentation of a research on arbitral case law made under the direction of Prof. Didier Ferrier. Analysis of the trends which emerge from such research: consideration of contract rules and business practice; under standing of the reality of trade; good faith and fairness. Didier Ferrier, Professor of Law, University of Montpellier; Vice-President IDI Fabio Bortolotti, Professor of Law, University of Torino; Buffa Bortolotti & Mathis, Torino; Member AIGI Nicolas Charbit, Concurrences/e-Competitions Chief Editor, Paris |
| 10:00-10:40 |
PANEL on practical experience of arbitration. Conflicting
views of corporate lawyers Panel of corporate lawyers discussing their experience. Is it true that arbitrators tend to make both parties happy? Is it true that costs of arbitration are excessive? Is it true that arbitration procedures are too long? Or is it a problem of choosing the right institution and the right counsel? The respective roles of the corporate lawyer and counsel in deciding litigation strategies. CHAIRMAN: Fabio Bortolotti, Professor of Law, University of Torino; Buffa Bortolotti & Mathis, Torino; Member AIGI Stefano Artuso, General Counsel, COIN, Venezia-Mestre; Member AIGI Andrea Montanari, Legal affairs director, F.A.T.A. Spa, Pianezza (Torino); Member AIGI Ulisse Spada, Senior Vice-President, corporate and legal affairs, Piaggio & C. S.p.A., Pontedera; Member AIGI |
| 10:40-11:00 | Coffee break |
| 11:00-11:20 |
What can be done to improve the functioning of arbitration. The experience of the ICC Court of arbitration. The recent reforms of the ICC Court regarding availability of arbitrators. Other means to warrant efficiency and rapidity. The revision of the ICC arbitration rules. Laurence Marquis, Deputy Counsel at the International Court of Arbitration |
| 11:20-11:40 |
The quick arbitration procedure of the Piedmont Arbitration Chamber. The special procedure introduced by the Piedmont Arbitration Chamber. How it works. Practical experience and satisfaction of the users. Daniela Cena, Director, Piedmont Chamber of Commerce |
| 11:40-12:00 |
Developing arbitration in the Mediterranean area. Hassan Alami, President of Centre Euromed de Mediation et d'Arbitrage (CEMA) |
| 12:00-12:30 | Discussion |
| CHAIRMAN | Erwin Gärtner, Gärtner, Stübel, Baumann & Partners, Stuttgart; Member of IDI Council |
| 09:30-09:50 |
The general principles: trademark protection, exhaustion, parallel imports. The use of trademarks for preventing parallel imports. The principle of regional exhaustion. Possible types of approach: European Union and other jurisdictions. Policy problems: protecting the trademark owner or the consumer? Cesare Galli, IP Law Galli, Milano |
| 09:50-10:20 |
Protecting distribution networks against parallel imports: the point of view of business. The need to prevent parallel imports is the inevitable consequence of different price levels in different markets. Which are the various means the supplier can use? How to adapt strategies to different legal environments. Veerle Bouckaert, Legal Counsel BasicNet S.p.A., Torino Igor San Juan, Legal Counsel G-Star International B.V. |
| 10:20-10:40 |
How to draft clauses which protect the supplier against parallel imports. Distribution contracts: clauses prohibiting sales in certain areas; clauses prohibiting sale to non-approved licensing contracts: limitations to be imposed upon the licensee; cases where their breach may amount to a trademark infringement. Marco Venturello, Venturello e Saraceno, Avvocati, Torino |
| 10:40-11:00 | Coffee break |
| 11:00-12:00 |
Panel on parallel imports and trademark protection in various areas. Experts of different countries will discuss the means (if any) and limits of actions against parallel importers of original goods, in their jurisdiction. CHAIRMAN: Cesare Galli, IP Law Galli, Milano Italy: Marco Venturello, Venturello e Saraceno, Avvocati, Torino Japan: Souichirou Kozuka, Gakushuin University, Faculty of Law, Tokyo Spain: Rocio Belda de Mergelina, Garrigues, Madrid Turkey: Hikmet Koyuncuoglu, Koyuncuoglu & Koksal Law Firm, Istambul Ukraine: Nataliya Mykolska, Vasil Kisil and Partners, Kiev |
| 12:00-12:30 | Discussion |
| CHAIRMAN | Marco Hero, Tigges Rechtsanwälte, Munich |
| 09:30-09:50 |
The growing importance of securing the location in distribution franchising: an overview of the various solutions. A favourable location of the shop is essential in distribution franchising. Getting such locations and not loosing them is a crucial aspect for both parties of a franchising contract. What are the strategies to be recommended in this context? Possible solutions. Marco Hero, Tigges Rechtsanwälte, Munich |
| 09:50-10:20 |
The strongest option for the franchisor: direct control
over the premises. The franchisor may decide to acquire ownership of the premises or to lease them in his name. In this case he has two types of options: lease (or sublease) the premises to the franchisee, or lease the business (i.e. premises + authorizations, personnel, furniture, etc.). In some jurisdictions the second solution (affitto d'azienda, location-gérance), may avoid the application of mandatory rules on commercial leases. Silvia Bortolotti, Buffa Bortolotti & Mathis, Torino; Member of the IDI Council and Secretary General IDI Dorota Wiellowicz, Legal counsel for international markets, Yves Rocher Group, Paris |
| 10:20-10:40 |
Lease of the premises by a third party with option in
favour of the franchisor. Lease with an option to step in in favour of the franchisor. How to draft the contract. Possible conflicts with mandatory rules. How to limit the risks for the franchisor. Carl Zwisler, Gray, Plant, Mooty, Mooty & Bennett, PA, Washington DC |
| 10:40-11:00 | Coffee break |
| 11:00-12:00 |
PANEL on effectiveness of control of the location in the context of franchising. A number of experts will exchange views on their experience with regard to disputes arising from sublease agreements between franchisors and franchisees as well as with regard to contracts between franchisees and their landlords, with an option to step in in favour of the franchisor. To what extent such clauses are effective? The risk of conflict with mandatory rules on commercial lease contracts. CHAIRMAN: Carl Zwisler, Gray, Plant, Mooty, Mooty & Bennett, PA, Washington DC Luciana Bassani, Dannemann Siemsen Advogados, Rio de Janeiro Claudia Cruz, AVM Advogados, Lisbon Paul Jones, Jones & Co., Toronto (expert for China) Anders Thylin, Thylin Advokatbyra AB, Stockholm Patrick Lindgren, Advocare Law Firm, Helsinky |
| 12:00-12:30 | Discussion |