Commercial Law
Commercial law is the branch of civil law which governs business and commercial transactions. Obviously, the terms “business” and “commerce” are key in this context. SKW Schwarz gives advice on all legal relationships businessmen may enter into with their business partners as well as on issues of competition and corporate law which may arise from companies’ relationships with each other.
Commercial transactions and distribution law (commercial agents, authorised dealers and franchise law) are of particular importance in this respect. Our commercial law experts draft and structure all types of the usual commercial agreements and represent our clients both in regular court and in dispute resolution proceedings. Our international partner firms support the international business of our clients.
We do not treat commercial law as “just another” branch of law. Both our specialisation and our expertise give us the necessary know-how to resolve our clients’ problems efficiently without having to “read up” on everything first. As a matter of fact, many of our clients have been relying on our expertise for years or even decades.
We have excellent contacts with the main commercial associations and chambers. We cooperate particularly closely with AGA Unternehmensverband Großhandel, Außenhandel, Dienstleistung e.V., an association of more than 3,000 companies (most of them medium-sized) from the five German coastal states (www.aga.de). In particular, we advise its members on legal matters outside labour law.
Distribution law
Distribution law is an area of commercial law which deals with the distribution of goods and services and regulates the organisation of distribution. The advice of SKW Schwarz centres on the relationships between companies and commercial agents (commercial agency law) or brokers, between producers or suppliers and authorised dealers and franchisor and franchisee. Since we act for both principals and agents, we can assess any problems from both perspectives.
We support our clients comprehensively in all issues concerning the set-up and structure of their sales organisation at both the national and international level. SKW Schwarz gives advice on the selection and conception of distribution systems, on distribution agreements and on the establishment of distribution companies. We deal with all legal questions arising from the selected structure, for example concerning competition and antitrust law, corporate law and labour law.
We also support our clients in their day-to-day distribution activities. For example, we give them legal support in shaping their pricing and advertisement policy or in formulating and asserting their General Terms and Conditions. If disputes arise between the sales partners, for example about compensation payments for the termination of a contract, we represent our clients both in and outside court.
Examples
We regularly design distribution systems (commercial agents, authorised dealers, franchise systems). To give one example of many: On behalf of a chemicals producer we have drafted contracts with dealers abroad, both in and outside Europe, while taking into account the antitrust regulations.
After our client had withdrawn from a sales contract for chemicals which might have been defective we conducted the legal proceedings on his behalf. Our client’s contract partner demanded the price for the goods. After our client had withdrawn from the contract, the German courts of first and second instance (Landgericht and Oberlandesgericht) followed our view that a suspected defect which cannot be disproven by reasonable means is equivalent to an actual defect. Since an expert opinion did nothing to dispel the suspicion that the chemicals were defective, the action was dismissed and the counterclaim allowed.
A producer of wind mills and an important supplier wanted to negotiate a framework supply agreement. However, at the beginning of the negotiations the parties’ standpoints were too far apart. The draft of the framework agreement was not acceptable to our client. By identifying the parties’ key interests (supply security and flexibility on the one hand, security of seeing the goods accepted on the other), assessing the legal risks of alternative solutions and giving support during the negotiation procedure as such, we helped our client to find an acceptable compromise with the contract party.
Some of our partners work as arbitrators or party representatives in international dispute resolution proceedings (for example ICC, DIS, AAA, Chamber of Commerce Hamburg or Hamburger Freundliche Arbitrage). One example is a German-Ukrainian case. The Ukrainian buyer of chemicals refused to pay for the purchase, saying that the contract had not been effectively concluded because the Ukrainian signatory was not empowered to sign it. One of our partners was asked to act as arbitrator. The bulk of the contract was subject to German law, but in this issue Ukrainian law prevailed. At the conclusion of the proceedings the Ukrainian party was ordered to pay.
In the framework of a turnkey project our client planned to sell a plant to a contract partner in the Middle East under a plant delivery agreement. During the negotiations we and our partner law firms abroad advised our clients on all relevant legal issues and were actively involved in drafting the contract.
We conducted a dispute resolution procedure in front of the International Chamber of Commerce (ICC) arbitration chamber on the grounds of claims of an Israeli authorised trader against the German principal. The authorised dealer claimed damages for an unjustified reduction of the distribution area and the resultant termination of the contract and wanted the principal to buy back the goods held in stock by the dealer. At the same time a compensation payment was claimed under commercial agency law (mutatis mutandis). This complex issue (both from a legal and factual vantage point) was resolved at a relatively early stage, and we were able to secure an economically efficient and very favourable resolution for our client.
We extended a specialist opinion to a Dax company in connection with the Iraq embargo. We examined and described potential courses of action under the foreign trade restrictions created by the embargo.