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CRITICAL ISSUES IN INTERNATIONAL DISTRIBUTION
Termination Indemnity to Distributors, "Illicit Commissions", Revision of EC competition rules
2009 Annual Meeting of the International Distribution Institute
FRIDAY 12 JUNE AND SATURDAY 13 JUNE 2009, BARCELONA (SPAIN)
| IDI Conference | Programme | Registration | Practical Information | Full Programme PDF |
| CHAIRMAN | Didier Ferrier, Professor of Law, University of Montpellier; Vice-President IDI |
| 09:15-09:35 | Welcome Josep Maria Balcells, Council Member ICAB Responsible for the International Department Fabio Bortolotti, Chairman IDI |
| 09:35-09:50 |
Presentation of the IDI website. Silvia Bortolotti, General Secretary IDI |
| 09:50-10:10 |
General introduction: is the distributor (reseller) entitled to be compensated for the customer base developed during the contract? The theoretical question: is there a sort of unjust enrichment of the supplier which should be compensated? The answers given by statutory rules: laws protecting distributors (Belgium); laws which dictate common rules for agents and distributors (Lebanon, some Arab countries, Central America). National jurisprudence which extends rules on agents to distributors: Germany, Switzerland, Portugal, Spain, etc. Jaap van Till, Van Till Advocaten, Amsterdam |
| 10:10-10:30 |
The indemnity to distributors under Austrian and German
law. Cases where Austrian courts extend the rules on
the agent's indemnity to distributors. The method of
calculation of the indemnity. The protection granted by
§ 454 of the Austrian
commercial code. Gustav Breiter, Viehböck, Breiter, Schenk & Nau, Vienna |
| 10:30-10:50 |
The indemnity of distributors in Swiss law after the judgment of 22 May 2008 of the Federal court. The judgment of 22 May 2008 of the Swiss Federal Court has reversed the previous jurisprudence which excluded the application by analogy to distributors of the rules on goodwill indemnity applicable to commercial agents. To what extent this principle is to be applied and how is the indemnity to be calculated? André Thouvenin, Thouvenin Rechtsanwälte, Zürich |
| 10:50-11:10 | Coffee break |
| 11:10-11:30 |
New trends in Portuguese case law regarding the distributor's indemnity Several judgments of Portuguese courts have recognized the principle that distributors may, in certain cases, be entitled to the goodwill indemnity provided by law for commercial agents. João Gutierres, CNCM Sociedade de Advogados, Porto |
| 11:30-11:50 |
Spanish case law on distributors and a possible new
statutory rules protecting distributors Spanish courts have recognized the principle that distributors may, in certain cases, be entitled to the goodwill indemnity provided by law for commercial agents, but there is the possibility to exclude it by agreement between the parties. On the other hand, the Government is preparing a preliminary draft of a Commrcial Distribution Contracts Act with special provisions on goodwill indemnity for distributors. Ignacio Alonso, Advocatia Abogados, Madrid |
| 11:50-12:20 |
Conclusions: What are the appropriate strategies for suppliers? First solution: avoiding the distributor's law by choosing a different law; effectiveness of this approach and need to consider jurisdictional problems. Second approach: developing clauses which justify termination without indemnity (e.g. minimum turnover obligations). Third solution: choosing a different type of contract. Fabio Bortolotti, Buffa Bortolotti & Mathis, Torino |
| 12:20-13:00 | Discussion |
| 13:00-14:00 | Lunch |
| CHAIRMAN | Francesco Benigni, General Manager ECLA |
| 14:00-14:20 |
International and domestic rules aiming at combating bribery, with particular reference to contracts with intermediaries. The general legal framework: OECD Convention on combating bribery, the Foreign Corrupt Practices Act of the US and other domestic laws. The ICC Recommendations on combating extortion and bribery. To what extent do these rules apply to contracts with foreign agents and other intermediaries? François Vincke, Chair, ICC Commission on Anti-Corruption |
| 14:20-14:40 |
Agreements with agents who might make an illicit use of the amounts received. What is the extent of the principal's responsibility? To what extent is the principal obliged to verify if the commissions he pays to his agent or intermediary are used for illicit purposes? What precautions should be taken in order to avoid problems. Possible due diligence by specialized institutions. Pedro Santos Montoya, Chief Compliance Officer of the European Airspace and Defence company (EADS), Spain |
| 14:40-15:00 |
The consequences of bribery - who has the standing to sue? In case the intermediary has effected illicit payments, it is clear that the contract with the intermediary is void. How about the contract with the customer? Is this contract void? Does the customer have damage claims? Does a competitor have damage claims? Stephan Spehl, Baker McKenzie, Munich |
| 15:00-15:30 |
Coffee break |
| 15:30-15:50 |
Illicit commissions and international arbitration: how do
international arbitrators look at the problem. There are several arbitral cases dealing with the issue of "illicit" commissions. It is discussed whether the matter of bribery is arbitrable, but the general trend is that arbitrators may deal with the matter and will apply the rule according to which corruption entails the nullity of the respective contract. More complicated are borderline cases where it is not clear if whether the commissions where used for the purpose of bribing. Emmanuel Jolivet, ICC Court of arbitration |
| 15:50-16:10 |
Conclusions: possible guidelines for principals. How can principals avoid pitfalls when dealing with critical situations? Due diligence by specialized institutions. Clauses making clear that the agent/intermediary undertakes not to pay any bribe or other illegal payment. Avoiding excessive commissions, unless objectively justified. Leslie Thiele, Whiteman Osterman & Hanna LLP, Albany (NY) |
| 16:10-16:30 | 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 2008 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 12, 2009) a gala dinner will be held at the restaurant Barceloneta, c/L'Escar 22, Moll des pescadors.
Entry by ticket. Ticket price: 100 EUR for person (VAT included).
The workshop aims at discussing two issues that might be considered when reviewing Regulation 2790/1999. The conclusions of the discussion will be transmitted to the European Commission.
| CHAIRMAN | Fabio Bortolotti, Professor of Law, University of Torino; Buffa Bortolotti & Mathis, Torino; President IDI; Chair ICC Commission on Commercial Law and Practice (CLP) |
| 09:30-09:50 |
Agency agreements and Article 81 of the EC Treaty. New developments after the Spanish petrol distribution cases. Belén Arribas Sánchez, Monereo Meyer Marinello, Barcelona |
| 09:50-10:10 |
Distinguishing between genuine and non genuine agency agreements: is it possible to give practicable guidelines? Edward Miller, Reed Smith, London |
| 10:10-10:30 |
Discussion |
| 10:30-11:00 | Coffee break |
| 11:00-11:20 |
Selective distribution and franchising. Why the rules on selective distribution should not apply to franchising agreements. Rocio Belda de Mergelina, Garrigues, Madrid |
| 11:20-11:40 |
Franchising and Internet. Is it appropriate to apply the same principles which have been established for selective distribution? André Lombart, CMS DeBacker, Brussels |
| 11:40-12:00 |
Proposals for a revision of Regulation 2790/1999. Fabio Bortolotti, Professor of Law, University of Torino; Buffa Bortolotti & Mathis, Torino; President IDI Chair ICC Commission on Commercial Law Practice (CLP) |
| 12:00-12:30 | Discussion and approval of the Recommendation to be sent to the European Commission |
| CHAIRMAN | Olga Sztejnert, Drzewiecki, Tomaszek & partners, Warsaw |
| 09:30-09:50 |
General Introduction: how to approach agency and distributorship contracts in the Arab countries. Florian Amereller, Amereller Legal Consultants, Dubai |
| 09:50-10:10 |
Egypt Maged Ackad, Ackad Law Office, Cairo |
| 10:10-10:30 |
Saudi Arabia Stephan Jäger, Amereller Legal Consultants, Munich |
| 10:30-11:00 | Coffee break |
| 11:00-11:20 |
United Arab Emirates Sven Klaiber, Germany Trade and Invest, Cologne (formerly BFAI) |
| 11:20-11:40 |
Tunisia Sami Houerbi, Dakhlaoui, Houerbi Avocats, Tunis |
| 11:40-12:00 |
Libya Mahmoud Hamza, Mercedes Benz Egypt SAE |
| 12:00-12:15 |
The view of a European lawyer dealing with Arab countries Paolo Lombardi, Buffa Bortolotti & Mathis, Torino |
| 12:15-12:45 | Discussion |
| CHAIRMAN | Marco Hero, Tigges Rechtsanwälte, Düsseldorf |
| 09:30-09:50 |
General Introduction: Basics of International Franchise
Expansion Are you ready for international growth? What are the key questions your client should answer together with legal counsel before going abroad with a franchise model? Marco Hero, Tigges Rechtsanwälte, Düsseldorf |
| 09:50-10:10 |
Key elements of master franchise agreements The Unidroit guide on International Franchise agreements. How to structure a master franchise agreement. The main issues to consider when drafting the agreement. Lena Peters, Unidroit, Rome |
| 10:10-10:30 |
Area development and area representation strategies Besides master franchising, area development and area representation provide two alternative expansion strategies for franchise-systems. What are the main elements and key differences on these two distribution models? Derk van Dam, Ludwig & van Dam, Rotterdam |
| 10:30-11:00 | Coffee break |
| 11:00-11:20 |
How to co-ordinate legal services for an international
franchise-system As legal counsel you are limited to your jurisdiction. However, many franchise-systems do not want to deal with several lawyer nor to they have the ability to find the right specialists. How can you support your franchisor client in this situation responsibly and efficiently. Mercedes Clavel, JAUSAS, Barcelona |
| 11:20-11:40 |
The issue of applicable law in international franchising The problem mainly arises when franchisor and franchisee belong to different countries: direct franchising and multi-unit franchising. Is it possible (or desirable) to choose the law of the franchisor's country? When will this choice be effective? How to warrant the greatest possible uniformity to contracts governed by different laws? Silvia Bortolotti, Buffa Bortolotti & Mathis, Torino |
| 11:40-12:00 |
Dispute resolution strategies in international franchising: arbitration or ordinary jurisdiction? In international franchise agreements, the right choice of venue significantly influences the efficiency of enforcing or defending claims. Many countries do not accredit nor enforce foreign public judgments. Arbitration can be an interesting option to be considered before you start a cross-border franchise. John Baer, Sonnenschein Nath Rosenthal, Chicago |
| 12:00-12:30 | Discussion |