Please visit our website (www.vantill.nl).
Jaap van Till
Van Till Advocaten
De Lairessestraat 131-135
1075 HJ Amsterdam
[email protected]
2013 Annual Meeting IDI
14 June 2013
Munich
Choice of Law
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
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.”
Choice of Law
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)
Distribution
•
Specific distributor friendly legislations in
some countries (Belgium, Costa Rica,
Honduras, Lebanon, Paraguay)
•
General contract law and case law
Franchise Law
•
Disclosure laws
•
Registration requirements
•
Liability issues
Internationally Mandatory Rules
•
Competition law!
•
Consumer Protection laws
•
EU:
Community law which cannot be derogated from (Art
3 (4) of Rome I)
Choice of Law
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.”
In general, almost all legal systems allow the
parties to an international contract to choose the
applicable law