Please visit our website (www.vantill.nl).

2013 Annual Meeting IDI 14 June 2013

MunichJaap van TillVan Till AdvocatenDe Lairessestraat 131-1351075 HJ Amsterdamj.vantill@vantill.nl

In general, almost all legal systems allow the parties to an international contract to choose the applicable law

Choice of Law

European Union

The law chosen does not need to be connected to the contract

EC Regulation 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I)

Choice of Law

USA

Other legal systems, such for example in the USA, do, however, require a connection to the contract

Choice of Law

We need to consider carefully before making a choice

Commercial Agency

• Compensation or indemnity system (France/England – other EU Member States)

• Ingmar vs. Eaton (ECJ of 9 November 2000)

• OLG Stuttgart, 29 December 2011 and • OLG München, 17 May 2006

Further issues in the field of commercial agency which might be relevant:

German HGB, §92c (1):

“If the activity of commercial agent under his contract with the principal is not to be carried out within the territory of the EU or EFTA, then all provisions of this chapter may be varied by agreement.”

Danish law 272 of 1990, Art. 1 (3):

“Where Danish law shall apply to cases where the commercial agent’s activities shall not take place in a country which is a Member of the EU or EFTA, the parties can derogate from all provisions of this Act.”

Choice of Law

Danish law 272 of 1990, Art. 1 (3):

“However, the rules on indemnity under this Act cannot be derogated from in cases where mandatory rules on termination and indemnity apply in the country where the commercial agent’s activities shall be carried out or where the commercial agent is resident.”

Choice of Law

The choice of the law applicable generally implies that the (mandatory) rules of the chosen law will apply instead of those of the law which would apply in absence of a choice ............. unless national legislators have given “internationally mandatory” status to rules of their National State.

(For example: Art. 1 (2) of the Danish law (272) gives such a status to the national rules of indemnity)

Choice of Law

• Specific distributor friendly legislations in some countries (Belgium, Costa Rica, Honduras, Lebanon, Paraguay)

• General contract law and case law

Distribution

• Disclosure laws

• Registration requirements

• Liability issues

Franchise Law

• Competition law!

• Consumer Protection laws

• EU:Community law which cannot be derogated from (Art 3 (4) of Rome I)

Internationally Mandatory Rules

Ingmar vs. Eaton

> OLG München 17 May 2006

> OLG Stuttgart 29 December 2011

?

Choice of Law

Art. 3 (4) of Rome I:

“Where all other elements relevant to this situation at the time of the choice are located in one or more Member States, the parties’ choice of applicable law other than that of a Member State shall not prejudice the application of provisions of Community law, where appropriate as implemented in the Member State of the forum, which cannot be derogated from by agreement.”

Choice of Law

In general, almost all legal systems allow the parties to an international contract to choose the applicable law