Briefing notes

Steve Sidkin and Rebecca Richardson will be speaking at the upcoming UKFT event on Wednesday 17 October 2018: Working with agents and distributors. Commercial brand representation can be the most effective way to establish presence on the market. Due to...
Please  click here  to read Stephen's free-to-access article in Footwear Today....
Please  click here  to read Stephen's free-to-access article in Footwear Today....
Translational kinetic energy is the key to the movement of a yo-yo.  For many suppliers who price in GBP, recent foreign currency exchange movements have given GBP the look of a yo-yo.  But whether it can be said that the key to the...
Can a seller of goods ever be an agent? Whilst the question is a reasonable one given the various arrangements which arise between sellers, distributors and agents, confusingly the answer from a number of reported judgments appears to be no but, no but, yes!...
Steve will speaking at the European Commercial Law Summer School in Cambridge, on Tuesday 11 September. His topic, a "Review of Commercial Agents Regulations and lessons learnt from UK and EU" will include: Practical tips for drafting contracts ...
Use it or lose it Many of us can reflect with hindsight on the opportunities lost. The position in respect of distributorship agreements is no different. When a written distributorship agreement is prepared, it invariably contains a number of duties to...
Terminating an agency agreement can be very costly, as commercial agents are entitled to many rights and protections: damages for failure to give the appropriate termination notice, pre-termination commission, post-termination commission, back commission and...
Brexit: an opportunity or a disaster? Currently at 11.00pm GMT on 29 March 2019, the UK will leave the EU. Leaving the EU will affect some of your existing contracts. It may affect future contracts you plan to sign. In preparation, you should be thinking...
Commercial law partner and head of the firm’s commercial and technology department Steve Sidkin will be speaking at the Chemical Business Association’s conference on 13 September. Steve’s topic is ‘Brexit: Agency &...
How exclusive is exclusivity?  Commonly distributors are appointed on an exclusive, sole, or non-exclusive basis. Indeed, many distributors set great store on being the exclusive distributor for this territory or that product range.  It is as...
When properly written, agency and distributorship agreements (and, indeed, a swathe of other commercial agreements) often contain what are called No Oral Modification (“NOM”) clauses. These are provisions which state that the agreement cannot be...
“Take a look at my distributorship agreement. It’s the only one I got. Not much of an agreement. Never seem to get a lot. Take a jumbo across the water. Like to see my [favourite overseas country]." (with apologies to Supertramp and...
Of all of the provisions of the Commercial Agents Regulations, arguably the most contentious is the provision that compensation or indemnity is due on the retirement of the commercial agent. The only requirement is that termination of the agency on the...
Some things never change as Supertramp once claimed.  But the super resonance of these words is often seen when a distributor is appointed by a supplier but without a formal distributorship agreement being in place.  For some time, things may...
Trial period, provisional appointment, probationary period. The terms are various. But the objective is not. The idea is that if an agent is appointed on some form of conditional time basis, then the principal can avoid being liable for compensation or...
Reasonable notice and the length of a piece of string Legend has it that in years gone past, some lawyers (perhaps seeking to emulate Theseus) would deliberately carry around one or more pieces of string. The reason: to be able to use whichever piece of...
Partner promotions: Mary Elliott and David Murphy Legal directors: Rebecca Evans and Emma Roake Trade mark director: Sarah Redmond City law firm Fox Williams LLP has made two internal promotions to partner. From 1 May, Mary Elliott becomes a partner...
In some situations, it is clear. The principal informs the agent that the agency is at an end. The reasons can be various. But, as a certain Prime Minister might say, the end means the end.  In other situations, whether or not an agency relationship is...
For suppliers persistence is key In last month’s blog I discussed how a distributor whose distributorship agreement is terminated can protect itself given that distributors (unlike commercial agents) do not receive special protection under...
For many years there has been uncertainty about whether: software is goods; and   the grant of a software licence represents the sale of goods for the purposes of the Commercial Agents Regulations.  This is important because the Regulations...
For a business which uses agents, the start of a new year is also often the point when a review is undertaken as to whether a particular agent is achieving the business’ objectives – whether in respect of a range of products, particular...
For distributors, possession is nine-tenths of the law.   Distributors (unlike commercial agents) do not receive special protection under English law. So how can a distributor whose distributorship agreement is terminated protect itself? The...
In 2010, we published an article called “ Governing law and jurisdiction: Getting it right is crucial ”. Several years have passed since then, during which we have seen some developments in EU law in this area.  More importantly, however,...
Businesses change. Distributorship agreements are superseded by events. In a new blog, partner and chair of Fox Williams’ agentlaw team, Steve Sidkin, discusses the value of distributorship agreements. Do you regularly review yours? “Easy in...
For a business which uses agents, the start of a new year is also often the point when a review is undertaken as to whether a particular agent is achieving the business’ objectives whether in respect of a range of products, particular customers, or...
In the August edition of our agentlaw newsletter we reported on the view expressed by the Advocate General to the European Court that Coty Germany (the luxury beauty supplier behind Calvin Klein, Chloe and Marc Jacobs’ fragrance and cosmetic product...
Luxury brands are celebrating a landmark judgment of the European Court given last week.  In a case concerning Coty, the court ruled that a clause in the company’s selective distribution agreement prohibiting authorised distributors from using...
The laws of many countries both within and outside of the European Union entitle a distributor to compensation following termination of the distributorship agreement. In broad terms, this is comparable to the statutory protection given to commercial agents. ...
It is an important question. The rational for any business to use an agent is that the relationship is results based. Unlike a sales representative (where there will also be the issue of national insurance contributions aka employment tax), no sale equals no...
Backhanders are not new. For more than 120 years it has been a well established principle of law that the acceptance by an agent of a secret commission amounted to a breach of the agent’s duties to the principal, regardless of whether the agent acted...
Unsurprisingly the Commercial Agents Regulations are often viewed as the be all and end all so far as a principal’s relationship with his agent is concerned. But a recent High Court case highlights how short sighted this approach can be. The case...
To what extent should brands be able to prevent retail distributors from selling the brands’ products on eBay and Amazon? Last month the Advocate General to the European Court expressed the view that Coty Germany (the luxury beauty supplier behind...
Businesses deciding whether to appoint a commercial agent or distributor may be unaware that an alternative may be found in the European concept of commissionaire agent. But how does a commissionaire agent differ from a commercial agent or a distributor and...
The European Commission has announced that it has launched separate investigations into whether certain distribution practices of Nike, Sanrio (the company behind Hello Kitty), and Universal Studios illegally restrict traders from selling licensed...
“If the Commission finds that there has been an infringement of EU competition law, it will be open to the Commission to impose a very substantial fine. In addition, the actions taken by Guess in respect of its distribution agreements may result in...
American clothing and accessories brand and retailer Guess is under investigation by the European Commission as to whether certain restrictions in Guess’ distribution agreements illegally restrict retailers from selling Guess products cross-border to...
There is an urban myth that if a company appoints an agent on an exclusive basis, the agent can act only for that company and for no other company. The fact that this is an urban myth is shown by replacing: “ We appoint you as our exclusive agent...
It is invariably when a relationship is not going well that lawyers are asked “what can be done?” It is at that point that lawyers try to be creative and look not only at the words written in the distributorship, agency, or other commercial...
Event date: Monday 27 March 2017 Timings: Coffee from 10.00am, Event: 10.30am - 1.00pm followed by Lunch Venue: Grant Thornton UK LLP, 30 Finsbury Square, London, EC2A 1AG You are invited to the FSPA’s Brexit Information Event, where key-speakers are...
For some time there has been uncertainty as to whether or not agents outside the EU can be protected by the EU Agents Directive. The uncertainty dates back to a decision of the European Court of Justice in 2000 when it was decided that a principal...
The UK is one of the world’s most advanced digital economies and this is both a strength and a weakness, according to a report on BBC News on 13 February 2017. Are you reading this newsletter comfortably? But who else is reading it? More particularly,...
Stephen Sidkin, Emma Roake and Rebecca Richardson are speaking at the UKFT seminar 'Working with Distributors and Agents: how to get it right' on 4th April. Read more here:  Working with Distributors and Agents: how to get it right ...
Three recent cases show the risk that suppliers run when trying to rely on the terms of agreements made “on a handshake”. All three suppliers found to their cost that the agreements had either ceased to exist or did not protect them in the way...
A distributorship agreement often allows a distributor a certain period of time, following termination of the agreement, in which to sell-off the remaining stock which it has been distributing. At the end of the sell-off period, unsold stock may be required...
Please see below for three podcasts from our agentlaw seminar on 9 November 2016. Topics include:  House accounts and taking back customers from agents and distributors -   Laura Monro , Associate The don'ts and possible do's of price...
It is a fundamental tenet of English Law that an agent will not prefer his own interest or the interest of another principal above that of the first principal for whom the agent is acting. It follows that if an agent acts for one principal, he cannot act...
Determining the compensation payable to an agent on termination of an agency agreement is not a straightforward business. The Commercial Agents Regulations (the “ Regulations ”) fails to provide a definitive formula. But is that changing...
Fixed or minimum prices are considered by the Competition and Markets Authority (CMA) to be the most serious form of anti-competitive behaviour. However, the CMA recognises that in certain circumstances even anti-competitive agreements can produce...
Stephen Sidkin will discuss the effect of Brexit and what it means for Agency and Distributorship Agreements at the UIA Munich seminar on 9 September 2016. See PDF to the left for the full programme.  ...
Recently we focused on the substantial fines imposed by the Competition and Markets Authority on two suppliers which had attempted to impose minimum prices on online resellers of their products.  This is what is known as vertical restrictions on prices...
At around the time of last month’s EU referendum, the Competition & Markets Authority (the UK’s competition watchdog) published guidance materials for suppliers, distributors, and retailers on the thorny issue of price-fixing. Given the...
The High Court has today given judgment in the claim brought by The Software Incubator Limited (TSI) against Computer Associates Limited (the UK subsidiary of Nasdaq listed CA Inc.).   TSI acted as the commercial agent of Computer Associates before its...
The European Agents Directive provides many rights and protections for commercial agents.  One such right is the entitlement of an agent on termination to indemnity unless the agency agreement has been terminated as a result of breach by the agent. ...
The reason why the principal may take back a customer is, sometimes surprisingly, not appreciated by principal and agent alike.  Customer complaints resulting in a principal doing the work but still paying commission to the agent is obvious. Less so...
A judgment given in a recent case before the High Court provides a reminder to principals of a fundamental point to remember when considering how to proceed in the face of a serious breach of the agency agreement by the agent. The case concerned an agency...
Does the nature of the relationship really matter? A recent judgment of a Spanish Court of Appeal brings home again how trading relationships can morph into a distributorship arrangement and the consequences which can follow. In this case, the parties had a...
The entitlement of an agent under the Commercial Agents Regulations to indemnity or compensation on termination is well known. Also well known is that under the Regulations indemnity is capped.  But less well known is that the Regulations also give a...
The Commercial Agents Regulations provide principal and agent with a choice when it comes to termination of the agency agreement - is the agent to have an entitlement to uncapped compensation or a capped indemnity? The Regulations require the parties to...
When drafting a distributorship agreement it is common to include minimum purchase requirements on the distributor. Such requirements bolster the other performance obligations on the distributor. As a supplier it would be entirely unsatisfactory to appoint a...
Ever wondered whether the non-compete restrictions in your agency agreement can be relied on to work? For sure principals and agents will have different interest in wondering. But some of the mists of uncertainty have cleared following a very recent Court...
We are now located at our new office at 10 Finsbury Square, just a few minutes’ walk from our previous location in Dominion Street. 10 Finsbury Square is a new, environmentally friendly building, well positioned for our clients and with excellent...
For principals, the general rule is that providing in the agency agreement for the agent to receive on termination an indemnity payment under the Commercial Agents Regulations is safer, because an indemnity payment will be capped at the average annual...
The Commercial Agents Regulations set out the rights and duties of commercial agents. Some of these rights and duties are subject to various time periods.   The time period for notice to terminate the agency The Regulations set out the minimum...
Even successful and productive distributorship relationships may well run their course at some stage. Certainly a breakup can be messy at the best of times and the situation can become even murkier should there not be a written agreement between the parties....
Agents understandably think that it is good. Principals unsurprisingly are at best ambivalent towards it. But love it or loath it, with the publication on 17 July of the EU Commission report on its year long consultation into its effectiveness...
Whichever way Greeks vote in Sunday’s referendum, the impact of Greece’s financial position on trade with Greek companies will continue for some time. Selling to Greece? Sellers to Greece who have taken advantage of credit insurance...
German law provides for the enhanced protection of franchisees and, in particular, provides that a franchisor must fully inform a potential franchisee about the profitability of the proposed franchise during contract negotiations prior to the conclusion of...
When being appointed as a distributor in a given territory, it would be easy to celebrate the appointment and not consider the potential intellectual property issues which should be addressed.  Although not the supplier of the products, a distributor...
Enjoy paying tax?  Unlikely.  But it would be galling if use of an overseas agent or distributor resulted in a permanent establishment, and so a taxable presence in that overseas jurisdiction. If care is not taken, and the arrangements do give...
A business which uses sales agents to sell its products is dependent not only on the commercial strength of its products but on the success of its sales agents.  In an increasingly competitive environment, it is crucial for a business to ensure that it...
Fox Williams LLP with UK Fashion and Textile Association will be holding a seminar on Tuesday, 12 May, designed specifically for fashion and textile businesses in the UK​. Tuesday 12 May 2015 4pm - 6pm UKFT, 3 Queen Square, Bloomsbury, London, WC1N...
A recent Spanish Court of Appeal judgment provides an important reminder for suppliers and distributors that the employees of a terminated distributor can transfer automatically to the supplier under EU law. The law in question is the EU Acquired Rights...
Should be easy.  What can go wrong?  Become appointed as exclusive distributor for the territory.  Appoint agents in those parts of the territory which it does not make sense to have a sales office or sales representative.  Agents take...
It is usual in a distributorship agreement for either the agreement itself to set out the terms upon which the products are sold by the supplier to the distributor, or to refer to the standard terms and conditions of sale of the supplier. In both cases such...
As your domestic business grows, you may consider expanding overseas.  With reference to this, an easy way to achieve international reach is to appoint distributors in other countries.  You can gain access to a new market by taking advantage of the...
Fox Williams Partner Stephen Sidkin will be speaking at this year's GIMA Day Conference on  Wednesday,  15th April, 2015. Please see below for details and how to reserve your place.  GIMA Day Conference 11am start  ...
The view is often expressed that agency law is the same throughout the European Union as the EU Agents Directive has been implemented into the laws of all 28 member states. Whilst much of the 28 national laws are very similar, differences remain. ...
One of the biggest areas of dispute between a principal and agent can arise when an agent has a large territory which the principal considers is not producing the results it expects.  At the outset of the relationship an agent will normally look to...
When negotiating an international agency or a distributorship agreement, you should think carefully about the country in which you want any disputes arising out of or in connection with the agreement to be resolved, if that eventuality should ever arise and...
No matter the intention of the parties at the start of a relationship, there always comes a time when one party to an agency agreement wishes for it to come to an end. How easy or otherwise it is for the party who wishes to bring the agreement to an end to...
Fox Williams with UK Fashion and Textile Association will be holding a seminar on  Tuesday,  2nd  December, 2014.  C reated specifically for fashion, accessory, and textile businesses in the UK, this seminar will give you the...
The ability of an agent to retire on the grounds of age, illness or infirmity and claim compensation or indemnity under the Commercial Agents Regulations continues to surprise many principals.  The fact that the estate of a dead agent has the same right...
The Commercial Agents Regulations define a commercial agent expressly by reference to “goods”.  As such, there has been a question mark as to whether an agent who obtains orders for software can be an agent under the Regulations.  ...
At our seminar this year we are delighted to welcome Charles Shearman as our chairman for the evening and Paul Brown of AgentBase who will explain how the UK’s leading sales agent register can help your business.  We will also investigate...
The latest decision of the Court of Appeal concerning the compensation payable to an agent highlights certain issues which are sometimes overlooked. The case concerned a UK agent who had retired on the grounds of age. Eventually he claimed compensation...
This article was originally written for and featured in S olicitors Journal The decision in Fern Computer Consultancy v Intergraph Cadworx & Analysis Solutions Inc [2014] EWHC 2908 represents a reversal of the old maxim that as one...
Distributors should be drinking to success following the European Court’s decision in favour of a Belgian distributor, determining which courts have the right to hear a dispute relating to a distributorship agreement. The facts The distributor,...
One of the main missions of an agent is to obtain orders – the more the better for both principal and agent.  An agent may well be assessed periodically on his sales performance and a lack of orders or substantial drop in orders will often spell...
As might be said at a World Cup, messi instructions are best avoided. Agency relationships are no exception.  We frequently advise principals and agents in respect of contractual relationships which have either started on uncertain terms, or which reach...
In a supplier / distributor relationship the timing of the performance of a party’s contractual obligations can be critical. Often there will be included in a distributorship a provision stating either that: “time is of the essence”...
“The first rule of any technology used in a business is that automation applied to an efficient operation will magnify the efficiency. The second is that automation applied to an inefficient operation will magnify the inefficiency” (Bill Gates)...
We live in a global village.  The trouble is that every street, road, and lane has its own laws.   The world’s countries are no different.  But the situation is made more complex when a country decides that a particular law has...
For years it has been the case that distributors are the poor relation of agents when it comes to legal protection. But this position was altered substantially last year by the High Court. In deciding that a duty to act in good faith and fair dealing could...
As set out in the last issue of agentlaw news , it is possible with careful planning at the outset of an agency relationship to limit the agent’s entitlements on termination to commission on orders placed both before and a reasonable period of time...
Fox Williams LLP is now able to offer a new type of litigation funding.  Available for commercial contract disputes, our agreement with the funder has extended the funding to certain (but not all) claims made by agents under the Commercial Agents...
In years to come students may be asked to compare and contrast the Austrian Anschluss in March 1938 with what has happened in March 2014 in Crimea. But unlike 76 years ago, fashion brands are much more global and those trading in Russia and Ukraine may well...
Agency agreements, unlike distributorship agreements, do not give rise to competition law issues. Correct? Genuine The answer is largely so in the case of “genuine” agency agreements, that is where the agent bears no, or only insignificant,...
The Commercial Agents Regulations provide that an agent will either be entitled to a compensation payment or an indemnity payment on termination of the agency agreement in most circumstances.    These alternative awards are calculated very...
Generally on termination of a commercial agency agreement the main area of exposure for a principal will be post-termination compensation or an indemnity payment. But such exposure can be avoided or at least reduced in some situations. In contrast, the...