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Fabio Bortolotti Buffa Bortolotti & Mathis, Torino-Milano

Fabio Bortolotti Buffa Bortolotti & Mathis, Torino-Milano. Choice of forum strategy in the European Area. 2008 Annual Meeting of the International Distribution Institute - Torino 6-7 June 2008. Commercial agents

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Fabio Bortolotti Buffa Bortolotti & Mathis, Torino-Milano

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  1. Fabio BortolottiBuffa Bortolotti & Mathis, Torino-Milano Choice of forum strategy in the European Area 2008 Annual Meeting of the International Distribution Institute - Torino 6-7 June 2008

  2. Commercial agents • The agent can claim (under article 5, n. 1) in the country where the service is performed • The principal cannot bring a claim before his courts • Distributors • As above (unless it is considered as a contract of sale) What happens in the absence of choice? • Franchisees • Is it a contract for the supply of services ? • Who il supplying the service? BUFFA, BORTOLOTTI & MATHISSTUDI LEGALI ASSOCIATI

  3. No risk of claims in foreign countries • A possible judgment is easily enforceable in the country of the other party …. Reasons for choosing the forum of the Principal/Supplier BUFFA, BORTOLOTTI & MATHISSTUDI LEGALI ASSOCIATI

  4. Necessity to avoid onerous rules of the country of the principal/supplier ... choice of a foreign law • No possible agreement with the other party …. Reasons for not choosing the forum of the Principal/Supplier BUFFA, BORTOLOTTI & MATHISSTUDI LEGALI ASSOCIATI

  5. Arbitration as a more neutral alternative • In principle only for contracts involving larger claims • Or, in case of a defensive strategy (considering the cost of a claim for the other party) • Or, where the principal/supplier has several counterparts and an individual case may reflect on many others. Possible alternatives BUFFA, BORTOLOTTI & MATHISSTUDI LEGALI ASSOCIATI

  6. The clause must be agreed in writing The clause must be clear and must not leave space for misunderstandings (e.g. clause referring to supply of goods but not to the obligations of the parties under the distributorship agreement) The counterpart must not be an employee or a consumer How to make sure that the choice of forum clause is effective? BUFFA, BORTOLOTTI & MATHISSTUDI LEGALI ASSOCIATI

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