Research on arbitral decisions in international distribution

1. Research on arbitral decisions in international distribution

2. Plan I. Présentation of the research II. Result of the research III. Conclusion

3. A research on arbitral decisions in international distributionPRESENTATION OF THE RESEARCH OBJECT • Distribution agreements taken in the widest meaning : • intermediation : agency, commission ; • exclusive distribution : exclusive supply, distributionship agreement ; • non-exclusive distribution ; • sales ; • know-how licenses.

4. A research on arbitral decisions in international distributionPRESENTATION OF THE RESEARCH SOURCES • Published or commented arbitral decisions. • Non-exhaustive character of the decisions. • Partial content of the decisions.

5. A research on arbitral decisions in international distributionPRESENTATION OF THE RESEARCH GOAL • The research aims at revealing if there is a specificity in arbitral decisions in comparison with judicial decisions. • If there is one, this study allows us to assess in a comparative way the relevance of each. • If there is none, this study allows us to assess the interest of arbitration litigation.

6. Plan I. Présentation of the research II. Result of the research III. Conclusion

7. A research on arbitral decisions in international distributionRESULT OF THE RESEARCH APPLICABLE LAW • It seems that the law chosen by the parties is generally respected by arbitrators, sometimes even when there are national public order provisions (cf. Belgian dispute). • In the absence of a law chosen by the parties, the arbitrators tend to privilege the law of the distributor, whether he is an agent or a reseller, but the solution does not find a generalized application.

8. A research on arbitral decisions in international distributionRESULT OF THE RESEARCH OBJECT OF THE LITIGATION • As regards the intermediation: disputes concern essentially the intermediary’s indemnity at the end of the contract and occasionally corruption / bribery. • As regards the resale : disputes concern essentially non-fulfillment and abusive termination. • It should be observed that competition law, when invoked by the parties, is systematically applied by the arbitrators.

9. A research on arbitral decisions in international distributionRESULT OF THE RESEARCH SOLUTIONS • The arbitration solutions seem generally classic, that is to say corresponding to judicial solutions, but marked by a concern for equity or fairness which is translated by moderate decisions or evenly balanced between the parties and thus less dogmatic than those that would result from the normal application of the law. • We can notice : • a restrictive assessment of force majeure to remove its effect, • a flexible assessment of the obligation to limit its sanction (particularly in sales quota), • a strict assessment of tolerance or waivers to prevent an enforcement of penalties for breaches. • When the contracting parties belong to groups, the arbitration lends to lead to an involvement within the field of the dispute all the others entities belonging to the group. 

10. Plan I. Présentation of the research II. Result of the research III. Conclusion

11. A research on arbitral decisions in international distributionCONCLUSION To resume a formula already applied to mediation, we can say that arbitration aims at balance or fairness rather than at a strict application of justice («justesse plutôt que justice»), which contrasts «dura lex, sed lex» from the spirit of compromise.