Friday, 6 june 2008 The Impact of Internet on Agency, Distributorship and Franchising Agreements



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FRIDAY, 6 JUNE 2008
The Impact of Internet on Agency, Distributorship and

Franchising Agreements
Morning session: Marketing products and services through Internet
CHAIRMAN Fabio Bortolotti, Professor of Law, University of Torino; Buffa Bortolotti & Mathis, Torino; President IDI; Chair ICC Commission on Commercial Law and Practice (CLP)
09:15-09:35 Welcome
09:35-09:50 Presentation of the IDI website.
09:50-10:10 Sales promotion through Internet by companies with a distribution network: how to avoid conflicts with the network.

The principal/supplier may simply decide to advertise his activity through Internet: in this case there is no conflict but problems may arise if he gives inappropriate information (e.g. by naming exclusive distributors mere resellers). If the principal sells through Internet (directly or through portals of third parties) he must check whether this conflicts with possible exclusive rights granted to agents or distributors. How to avoid the risk of discrimination (e.g. direct sales in competition with franchisees).


Marco Hero, Tigges Rechtsanwälte, Düsseldorf
10:10-10:30 Practical considerations on the use of Internet by principals/suppliers. How to draft appropriate clauses in order to avoid conflicts with the members of the network.

In which situation the principal/supplier can sell through Internet without damaging his network? The possibility of separating distribution channels. Cases where this choice is not appropriate. Clauses whereby the principal/supplier reserves the right to sell through Internet (as an exception to possible exclusive rights of his agents/distributors). Compromise solutions which take into account the interests of both parties.


Guy Gras, Director for legal affairs, Yves Rocher; Chair, Fédération française de la franchise
10:30-10:50 Use of Internet by members of the sales network: the risks and possible remedies.

A promotion by members of the network may create considerable problems if the information given is not under the control of the principal/supplier: interference with the trademark and corporate image strategies of the principal/supplier. The supplier must be able to control the contents of the information given, while at the same time respecting the independence of distributors.


Souichirou Kozuka, Sophia University, Tokyo
10:50-11:10 Coffee break
11:10-11:30 Contractual strategies for keeping the action of distributors within acceptable boundaries, while respecting EU antitrust rules.

Promotion through Internet by distributors may substantially interfere with the exclusive rights of other members of the network. At the same time, EU antitrust rules (and especially regulation 2790/1999) consider Internet sales as "passive sales", which cannot be prohibited. Which are the limitations that can be imposed upon distributors without infringing the rules on competition?


Fabio Bortolotti, Professor of Law, University of Torino; Buffa Bortolotti & Mathis, Torino
11:30-12:15 PANEL on Internet sales by selective distributors and franchisees in the EU. Which limitations can be imposed without infringing the rules on competition?

Under EU competition rules (and especially Regulation 2790/1999) selective distributors (i.e. who are bound not to sell the contractual products to traders who do not belong to the network) must remain free to make active sales to any end user in the EU. The only limitation that may be imposed on them is the obligation to sell from their outlet. There are very interesting developments in case law regarding selective distribution networks by the EU Commission and the French antitrust authority, which determine the conditions that may be imposed upon members of a selective distribution network. The panel will discuss if and to what extent such case law is applicable to franchising networks which can be considered “selective”

(i.e., networks where the franchisees are not authorized to sell to traders not belonging to the network).
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CHAIRMAN: Didier Ferrier, Professor of Law, University of Montpellier; Vice-President IDI Fabio Bortolotti, Professor of Law, University of Torino; Buffa Bortolotti & Mathis, Torino; President IDI
John H Pratt, Hamilton Pratt, Birmingham
Carol Xueref, Director for legal affairs and group development, Essilor International S.A., Paris
Chantal Zimmer, Secretary General of the French Franchise Federation, Paris
12:15-13:00 Discussion
13:00-14:00 Lunch

Afternoon session: Negotiating and concluding contracts through Internet

CHAIRMAN Francesco Benigni, Vice-President and Secretary General ECLA


14:00-14:15 International instruments for warranting functional equivalence between electronic records and paper-based documents.

The UNCITRAL model law and the 2005 UNCITRAL Convention on electronic communications in international contracts. The amended text of Article 23(2) of Regulation No 44/2001 on choice of forum clauses. The UNCITRAL recommendation regarding the form of arbitration clauses under the New York convention of 1958. Article 3 of the Hague Convention on Choice of Court Agreements.


José Angelo Estrella-Faria, Senior Legal Officer with the International Trade Law Division

(ITLD) of the United Nations Office of Legal Affairs (UNCITRAL)


14:15-14:30 Practical problems arising in Internet negotiation. The view of a company lawyer.

The experience made with contracts negotiated through e-mail. Possible risks and precautions to be taken.


Giuseppe Catalano, General Counsel & Company Secretary Indesit Company SpA
14:30-14:45 Use of Internet for settling disputes: the on-line conciliation of the Piedmont

Arbitration Chamber.

The Piedmont Chamber of Commerce has developed a system of on-line conciliation. The presentation will deal with the practical experience made with this new approach to conciliation.


Daniela Cena, Director, Piedmont Chamber of Commerce
14:45-15:00 The digital signature of Infocamere: a practical and effective means for business. Infocamere has set up a very effective system of certification of digital signatures. The speaker will describe in practical terms how this system makes it possible to warrant the origin and integrity of electronic messages.
Gabriele Da Rin, Infocamere SCpA
15:00-16:00 PANEL on various issues arising when concluding contracts through Internet

(evidence, written form, place and time of conclusion) in different jurisdictions. The panel will address the following questions: Is an exchange of e-mails valid evidence for the conclusion of a contract? Is an exchange of e-mails equivalent to a written contract? When and where is the contract concluded? How can the authenticity of the signature be warranted?
CHAIRMAN: Edward Miller, Reedsmith, London

Magnus Nedström, Advokatbyrån Sigeman & Co AB, Malmö Leslie Thiele, Whiteman, Osterman & Hanna LLP, Albany (NY) Jaap van Till, Van Till Advocaten, Amsterdam
Olga Sztejnert, Drzewiecki, Tomaszek & Partners
16:00-16:30 Discussion

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Individual contacts with IDI Country Experts (16:30-17:00)
AFTER THE AFTERNOON SESSION THE IDI COUNTRY EXPERTS WILL BE AVAILABLE FOR INDIVIDUAL CONTACTS WITH THE PARTICIPANTS.

General meeting of the members of the International Distribution Institute (17:00-18:30)
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 2007 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.


Social event: Gala Dinner (20:00)

On Friday evening (June 6, 2008) a Gala Dinner will be held at “Il Cambio”, a prestigious example, since 1757, of the

Torino culinary tradition and hospitality.
Entry by ticket. Ticket price: ! 95 for person (VAT included).

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SATURDAY, 7 JUNE 2008

FIRST WORKSHOP

Calculation of Goodwill Indemnity for Agents and Distributors
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: Klaus Meyer Swantee, Retired Partner of Derks Star Busmann, Amsterdam. Member of the IDI Council
09:30-09:50 Evaluating the possible amount of indemnity for agents and distributors and means to reduce it under German law.
Marco Hero, Tigges Rechtsanwälte, Düsseldorf
09:50-10:10 Criteria used by Belgian Courts to calculate the indemnities for distributors under the law of 1961.
Ingrid Meeussen, Lafili, Van Crombrugghe & Partners, Brussels
10:10-10:30 French case law on the calculation of the goodwill indemnity for commercial agents and distributors.
Christoph Martin Radtke, Lamy & Associés, Lyon
10:30-11:00 Coffee break
11:00-11:20 Indemnity for agents and distributors in Spain: the calculation criteria used by the courts.
Ignacio Alonso, Advocatia Abogados, Madrid
11:20-11:40 Determining the amount of indemnity for agents in the United Kingdom: the latest developments in case law.
Edward Miller, Reedsmith, London
11:40-12:00 The calculation of the agent's indemnity in Italy after the Honyvem judgment of the Court of Justice.
Silvia Bortolotti, Buffa Bortolotti & Mathis, Torino; Member of the IDI Council and Secretary

General IDI


12:00-12:30 Discussion


SECOND WORKSHOP

M&A Agreements and Distribution Networks
CHAIRMAN: Carol Xueref, Director for legal affairs and group development, Essilor International S.A., Paris
09:30-09:50 The due diligence regarding contracts with agents and distributors. How to avoid common pitfalls.

When acquiring a company which has a distribution network, the legal status of the contracts with the members of the network (agents, distributors, franchisees) is a critical issue which is not always adequately considered.


Cristina Martinetti, Buffa Bortolotti & Mathis, Torino
09:50-10:10 Criteria for evaluating the financial risks arising in connection with distribution networks of the target company.
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The valorisation of the target is generally submitted to the results of the due diligence process: the issues to be adeguately taken into account to appreciate the actual financial impact of distribution networks within different jusidictions.


Carol Xueref, Director for legal affairs and group development, Essilor International S.A.
10:00-10:30 Problems arising when the sales network of the acquired company needs to be merged with the network of the acquiring company or dismantled.

Preventing problems by requiring the seller to terminate agency and distributorship contract before closing. Obtaining all the information which may be needed for defending against claims by agents or distributors in case of termination by the principal/supplier.


Erwin Gärtner, Gärtner, Stübel, Baumann & Partners, Stuttgart; Member of the IDI Council
10:30-11:00 Coffee break
11:00-11:45 PANEL on practical experience made in acquisitions of companies with distribution networks.

Experts will share their experiences and discuss the remedies to critical key points. A general discussion with the participants will follow.


CHAIRMAN: Carol Xueref, Director for legal affairs and group development, Essilor

International S.A., Paris


Erwin Gärtner, Gärtner, Stübel, Baumann & Partners, Stuttgart; Member of the IDI Council
Cristina Martinetti, Buffa Bortolotti & Mathis, Torino
Geert A. Zonnekeyn, Monard D'Hulst, Kortrijk
Sönke Lund, Monereo Meyer Marinel-lo Abogados, Barcellona
11:45-12:30 Discussion


THIRD WORKSHOP

Litigation Strategies in International Distribution Agreements
CHAIRMAN: Fabio Bortolotti, Professor of Law, University of Torino; Buffa Bortolotti & Mathis, Torino; President IDI
09:30-09:50 The choice between arbitration and the jurisdiction of ordinary courts

There are no general rules. Cases where arbitration is less appropriate (small disputes; non arbitrable matters; Belgian distributors). Situations where arbitration is advisable: large disputes; counterpart in countries where a party would prefer to avoid litigating (e.g. USA).


Didier Ferrier, Professor of Law, University of Montpellier; Vice-President IDI
09:50-10:10 What happens when there is no choice of forum (or arbitration)

In the European jurisdictional area (EU + Switzerland, Norway and Iceland) the rules of Regulation (EC) No 44/2001 and of the revised Lugano convention (2007) entitle the party which supplies the service to claim before the courts of its jurisdiction. How does this principle work with agents, distributors and franchisees? In other countries the outcome is less foreseeable.


Gustav Breiter, Viehböck, Breiter, Schenk & Nau, Vienna
10:10-10:30 Strategy of choice of forum in the European area

Choice of forum at his seat is important for the principal/supplier, in order to avoid the courts of the other party. In the framework of a defensive strategy the principal will have the advantage of defending at home. In case of an offensive strategy (e.g. distributorship contracts, where the supplier may need to recover payment of goods supplied), the same strategy is appropriate since judgments are easily recognized in other countries. The choice of court clause must be in writing.



Fabio Bortolotti, Professor of Law, University of Torino; Buffa Bortolotti & Mathis, Torino; President IDI
10:30-11:00 Coffee break
11:00-11:45 PANEL on jurisdictional strategies in selected areas

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A number of experts will exchange views on possible litigation strategies in the areas they are familiar with. A general discussion with the participants will follow.

Latin America: Pedro Eichin Amaral, Eichin-Amaral Legal Consultants, Rio de Janeiro

Arab countries: Florian Amereller, Amereller Legal Consultants, Munich

Countries entered recently in the EU: The Polish experience: Olga Sztejnert,

Drzewiecki, Tomaszek & Partners, Varsavia

USA: Leslie Thiele, Whiteman, Osterman & Hanna LLP, Albany (NY)



Ukraine and Russian Federation: Tatyana Slipachuk, Vasil Kisil and Partners, Kiev

11:45-12:30 Discussion

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