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

What happens in the absence of choice? 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) Franchisees Is it a contract for the supply of services ? Who il supplying the service? BUFFA, BORTOLOTTI & MATHIS STUDI LEGALI ASSOCIATI

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

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

Possible alternatives 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. BUFFA, BORTOLOTTI & MATHIS STUDI LEGALI ASSOCIATI

How to make sure that the choice of forum clause is effective? 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 BUFFA, BORTOLOTTI & MATHIS STUDI LEGALI ASSOCIATI