CHINA: Are constraints on “relatively advantaged positions” coming to Chinese contracts?

The 国家市场监督管理总局 – State Administration for Market Regulation (“SAMR”) in China has released a draft Amendments to the 反不正当竞争法 – Anti-Unfair Competition Law (hereinafter the “Draft”) on November 22, 2022. The Draft, amongst other things, proposed the addition of the “相对优势地位” or “relatively advantaged position” concept and the relevant factors for determining this position. This […]

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FRANCE: French agency case law overturned and aligned with EU case law: a principal can no longer rely on a serious breach discovered after the termination to deprive the agent of the benefit of the termination indemnity (Comment of the decision of the French Cour de cassation, Commercial Chamber, 16 November 2022, LawLex202200009995JBJ).

In this case, a principal accused his agent of having engaged in the representation of a competitor in parallel with his mandate. The agent argued that this activity had been known to the principal for many years. However, several years after the beginning of their collaboration, the principal amended the contract to prohibit the agent […]

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EU: Judgement of the Court of Justice of 13 October 2022, on the sub-agent’s right to goodwill indemnity.

With decision of October 13, 2022 (in the proceeding C-593/21, NY v. Herios Sarl) the European Court of Justice decided on the right of a sub-agent to receive the goodwill indemnity from its principal, in a case where the sub-agent, after the end of the contract with its principal, continued to represent the same customers […]

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FRANCE: Selective distribution: the Paris Court of Appeal does not consider the conditions of resale of sports shoes, covered by a selective distribution agreement, by a discount chain to be devaluing (Paris court of appeal, 19 October 2022).

On 19 October 2022, the Paris Court of Appeal ruled on a case concerning the conditions of resale of products covered by selective distribution in a discount retail chain. The head of a sports and leisure goods network accused the chain of having sold its products as part of a promotional operation during which it […]

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POLAND: Poland’s Supreme Court once again confirmed that the Polish pension authority (Zakład Ubezpieczeń Społecznych) has the right to assess the nature of the contracts concluded, regardless of what the parties called them (judgment of December 10, 2020, III UK 402/19).

The judgment was issued in a dispute as to whether, in connection with the conclusion between an entrepreneur and a person performing services for him of a contract bearing the title: “work contract”, it was necessary for the entrepreneur to pay social security contributions. In Poland, not all contracts under which an individual who is […]

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INDIA: Draft privacy law.

The Indian Government recently released the latest in a series of draft privacy laws in November 2022. There are provisions within the draft law on restrictions on overseas transfers to countries other than those that will be notified by the Indian Government, which may prove to be a hurdle to foreign franchisors that may require […]

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EU: Revision of the Commission Notice on the definition of relevant markets: welcome progress but legal certainty still insufficient, plus a risk of over-regulation.

The Commission has launched a public consultation and has invited all interested parties to submit their comments on the Draft Revised Market Definition Notice by 13 January 2023 (EU Comm., IP/22/6528, 8 Nov. 2022). The revision process started in April 2020 and the draft submitted for consultation is one of the last steps to modernize […]

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NEW ZEALAND: Unfair contract terms.

In relation to distribution, franchising and agency matters in New Zealand, please note that the Fair Trading Amendment Act 2021 (“Amendment Act”) extends the existing prohibition on unfair contract terms in consumer contracts to standard form small trade contracts worth under $250,000 (including GST). The Amendment Act also introduced a new prohibition on unconscionable conduct. […]

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CANADA: Franchisors beware: amendments to the Competition Act criminalize no-poach and no-hire provisions.

Pending amendments to the Competition Act will soon criminalize no-poach and no-hire provisions (including non-solicits) in certain circumstances. This is an important development for franchisors as provisions relating to hiring and solicitation are common in franchise agreements in Canada. While many such provisions will continue to be defensible once the new law takes effect in […]

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What’s new at IDI!

The new IDI website was launched and documents have been also organized by subject. You can now find three new sections: – Antitrust – Applicable Law & Jurisdiction – Arbitration Under the Antitrust and Applicable Law & Jurisdiction sections, you will find the respective special reports on the subject, namely: – the IDI Report on […]

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GREECE: Α new law in Greece enables franchisees to increase their profits.

SUMMARY It is a common fact that commercial cooperation agreements were always of great concern to Greek entrepreneurs, and especially to Greek franchisors. The adoption of Presidential Decree 219/1991 that regulates exclusive commercial agency agreements, highlights the evidence of this concern. Further, the enactment of Law No 3557/2007 followed, of which article 14 par. 4 […]

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FRANCE: News from France – Appeals Court of Bordeaux, September 21, 2022 / Court of Cassation, September 7, 2022 -.

Merger-acquisition affecting the company of the commercial agent allows the termination of the agreement by the principal (Appeals Court of Bordeaux, September 21, 2022). Under French law, the commercial agent agreement is deemed by ARTicle L134-2 of French commercial code “of common interest” and thus traditionally considered to have been concluded intuitu personae, in consideration of […]

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NETHERLANDS: January 1, 2023 is the deadline for implementation of the Dutch Franchise Act. Is your franchise agreement already compliant?

The Dutch Franchise Act (the “Act”) went into effect on January 1, 2021. The Act is mandatory law for franchise undertakings in the Netherlands and franchisors and franchisees were required to conduct themselves in accordance with the Act as of that date. Specific contractual adjustments also had to be implemented immediately in new franchise agreements […]

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ITALY: Recent news from Italy.

ABUSE OF ECONOMIC DEPENDENCE – FRANCHISE AGREEMENTS Article 9 of law No. 192 of 18/06/1998 on subcontracting prohibits the abuse of economic dependence, i.e., the situation which exists when a party is able to determine an excessive imbalance of rights and obligations for the other party. Namely, Art. 9 Law 192/1998 provides: “Abuse of economic […]

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SAUDI ARABIA: Draft new Saudi Commercial Distribution & Agency Agreements Law.

Following the issuance of the Saudi Franchise Regulations by Royal Decree M/22 of 9/2/1441H. on 25 October 2019, the Saudi government is preparing a new law on commercial distribution and agency contracts; a draft of the law, which will, for the first time, contain provisions on the contractual relationship between the parties, was recently published […]

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CHINA: New revisions of Anti-Monopoly Law.

The Standing Committee of the National People’s Congress has issued recently the decision of amending the Anti-Monopoly Law of the People’s Republic of China (AML Amendment), effective from August 1, 2022.   Key takeaway The AML Amendment introduces the “safe harbour” rule to make the conditions concerning the fixation of price less restrictive. If companies […]

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UKRAINE: Calculation of royalties under franchise agreements in Ukraine – recent case law.

Factual background  Double F Group LLC (franchisor) has concluded a franchise agreement with a private entrepreneur Mrs Mostova (franchisee). Under the franchise agreement, the franchisor has granted the franchisee a set of intellectual property rights, including the trademark “Cheese Kingdom”, for developing a cheese shop within the franchisor’s chain. The franchise agreement has set out […]

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