The International Distribution Agreement: Transnational Contracting across the European Union, the United States and Latin America

by Marco Mastracci

Overview

With the ever-increasing interconnection between markets, businesses and individuals from all over the globe, professionals are asked to develop a greater interest in the international implications of contracts. This book focuses attention on the distribution agreement, one of the most widely used contractual schemes in the practice of international exchanges, providing a analysis and information on the issues that should be considered by the practitioner when drafting, interpreting or executing an international agreement. Issues relating to the choice of the governing law, the competent court, the validity or invalidity of some clauses, the impact that the language of the contract may have, as well as the different meaning and scope of application of some principles, such as good faith and le estoppel, are analyzed from a transnational perspective, highlighting how the same issue can be regulated differently depending on the regulatory framework that governs it. In this second edition, the distribution relationship has been evaluated mainly across the legal systems of the European Union, the United States and Latin America, while not missing references to other regulatory frameworks, which are highlighted in correspondence with particular issues.

Product Details

ISBN-13:	9781627343282
Publisher:	Universal Publishers
Publication date:	11/01/2020
Edition description:	2nd ed.
Pages:	356
Product dimensions:	6.14(w) x 9.21(h) x 0.74(d)

Table of Contents

Preface ix

Acknowledgements xi

1. Introduction 1

1.1 The Distribution Agreement in a Cross-Border Context 1

1.1.A The distribution agreement 4

1.1.B The cross-border context 5

1.2 The Debate on the Unification of the Laws on Economic

Transactions: An Overview 14

1.3 Sources of Laws that Can Affect the International

Distribution Contract 22

1.3.A National laws 24

1.3.B International laws 32

1.3.C International trade principles; Lex Mercatoria 37

1.4 Conclusions 44

2. Introduction to the Distribution Contract 47

2.1 Notion and Discipline of the Distribution Contract

in a Trans-National Context 47

2.1.A Notion and discipline of the distribution

contract in Europe 51

2.1.B Notion and discipline of the distribution

contract in the United States 55

2.1.C The notion and discipline of the distribution

contract in Latin America 57

2.2 Essential Elements of the Contract 59

2.2.A Contractual capacity 61

2.2.B Object of the contract 65

2.2.C Offer, acceptance, formal requirements 67

2.3 Implied and Explicit Elements 71

2.4 Appointment of the Distributor 75

2.5 Sale of Products by Distributor 82

2.6 Competition Law 85

2.6.A Scope and ratio of competition law 85

2.6.B US and EU fundamental regulatory

references in the field of competition 88

2.6.C Latin America: fundamental regulatory

references in the field of competition 90

2.6.D China: fundamental regulatory references

in the field of competition 95

2.7 Language of the Contract 97

3. Interpretation of the Distribution Agreement

and Promissory Estoppel 103

3.1 Origins and Legal Basis of the Principle

of Good Faith 104

3.2 Estoppel and English Law: The Application of the

Estoppel Doctrine in the Courts of Common Law 112

3.3 Equitable Estoppel in Continental Law Systems 124

3.3.A Estoppel and "Actos Proprios ": good faith

principle in Latin America 125

3.3.B Equitable estoppel from a European

perspective 128

3.3.C Equitable Estoppel in international

distribution agreements 134

3.4 Promissory Estoppel in an International Distribution

Contract 140

3.5 Promissory Estoppel and the Distribution Agreement.

The International Jurisprudence 154

3.6 Conclusions. The Promissory Estoppel Between

Civil Law and Common Law 169

4. Selective Distribution 175

4.1 The Nature of Selective Distribution Agreements 175

4.2 The Legal Framework of Selective Distribution.

Exclusivity and Competition 178

....

5.9 Hardship Clause 272

5.10 Force Majeure 278

5.11 Confidentiality 289

5.12 Warranties 291

5.13 Termination 296

6. Dispute Resolution, Governing Law and Jurisdiction 307

6.1 General Principles on the Choice of Governing

Law in an International Contract. Distribution Contract 307

6.2 Limitations Affecting the Parties on the Choice of

Governing Law. The Consequences Deriving from

Contractual Silence 310

6.3 The Discipline Within the European Union and the

Attempts of International Law Conventions.

The Lex Mercatoria 314

6.4 The Solution of the Disputes Between Ordinary

Jurisdiction and Arbitration 326

6.5 The Parties' Freedom to Select the Competent Court 337

6.6 The General Principles in Case of Lack of Provisions

in the Contract 341