1. 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

2. 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

3. 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

4. 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

5. 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

6. 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