-
瑞士
Switzerland – New law changes statute of limitations
20 11 月 2019
- 契约
《法国商业法》规定，贸易商在未给予充分书面通知的情况下终止书面合同或非正式商业关系(第442-1.1条)将被制裁。在过去的二十年中，这已成为商业关系或合同终止（全部或部分终止）时所有补偿行为（最高可达24个月的毛利率以及其他损害赔偿）的经常性法律依据。
因此，与法国公司签约的外国贸易商应尽量避开该规则的管辖范围 (第一部分)，如果不能，则应理解并控制其实施 (第二部分)。
简而言之
外国公司如何避免或控制与法国法律规定的“突然终止商业关系”有关的风险？
与法国公司做生意的外国公司应该这样做：
- 与法国供应商或客户尽快达成书面（框架）协议，即使是非常简单的关系也是如此；
- 规定一项有利于外国法院或仲裁以及外国适用法律的条款，而如果不能选择该条款，则只能服从法国法院和法律。
外国公司如何才能掌控法国法律规定的“突然终止商业关系”的风险?
与法国公司做生意的外国公司应该这样做：
- 要知道，本条适用于几乎所有类型的商业关系或合同，无论是书面的还是非书面的，无论是定期的还是非定期的;
- 检查其关系/合同是否期限足够且正常和重要，以及对方是否有合理理由相信该关系/合同会继续维持；
- 给出终止或不续约（甚至是重大修改）的书面通知，其期限主要考虑到关系的持续时间，与合同通知的时限无关；
- 谨慎地劝告当事方在遭遇不可抗力和严重过失的情况下，搁置“突然终止”；
- 如果没有充分的通知，则预计赔偿金额为为每月平均毛利率与未获批准的事先通知的期限之积。
如何避免适用法国的“突然终止”规则?
在国际事务中，外国公司必须预见其关系是否将受到法国法律的管辖，并且在发生争议的情况下，是否将其关系提交到法国法院。
“突然终止合同”的法律适用范围是什么?
对于一个外国公司来说，要正确地掌握适用于“突然终止”的法国法律冲突法规则框架是相当困难的。巴黎上诉法院在2018年9月19日的裁决（RG 16/05579，DES / 娇韵诗）中隐含提及Granarolo欧盟裁决（07 14 16，N°C196 / 15），该裁决将合同资格扩展至大多数业务关系，以改善可预见性，来应对外国公司试图排除法国法律及其“突然终止”规则的行为。
突然终止书面合同或“默认合同关系”
根据关于合同适用法律的罗马一号法规 (EC No 593 / 2008，2008年6月17日)：
- 如果当事各方选择了外国法律：选择外国适用法律的条款将是有效的，并将受到法国法官的尊重 (服从OMR，请参阅下文)，前提是当事各方选择的法律是明示或确定的。
- 如果当事各方没有选择法律：法国法律可能会宣布适用，因为它可能也是分销商/加盟商所在国的法律等，或是提供合同服务功能的当事方所在国家/地区的法律。
突然终止“非默认合同关系”
如果是非正式关系 (即偶尔下达订单)，法国法官将保留侵权行为资格，并将参考适用于非合同义务法律的《罗马二号条例》(第864/2007号，2007年7月11日)。
- 如果当事各方选择了外国法律：法国法官应执行草拟的外国法选择条款，条件是该条款明确包含侵权案件。
- 如果当事各方没有选择法律：法国法律可能会宣布适用，因为这可能是损害发生的国家/地区的法律（无论是发生事件的地点还是造成间接后果的地点），是法国受害者遭受终止结果的总部所在地。
“突然终止合同”是法国的一项压倒一切的强制性规定吗?
法国法院的立场相当模糊且令人不满。 简而言之：巴黎商事法庭认为“突然终止”不是OMR，巴黎上诉法院（负责“突然终止”案件的唯一法国上诉法院）却支持OMR资格，而最高法院……对此事保持沉默。尽管罗马一号条例（或罗马二号）第9.1条缺乏严格的推理和理由，但很明显，巴黎上诉法院有司法意愿将“突然终止”归为OMR。 因此，如果向法国法院提出“突然终止”的要求，则该法国法院极有可能排除适用的外国法律，而将其替换为产生于第L 442-1. II条“突然终止”。
因此，外国公司确保“突然终止”不会妨碍合同的终止或停止续签的唯一可能性，不仅是选择一项适用的外国法律，而且是确保将争端提交外国法官或仲裁庭。
如何避免法国法院对“突然终止”索赔的管辖权?
“突然终止”索赔和欧盟内部共同承包商
欧洲法院的裁决(Granarolo, 2016年7月14日，NC196/15)区分了以下索赔:
- 书面框架合同或默认合同关系 (仅当欧洲法院所列出的证据由国家法官确定时才存在，即相互承认的关系和承诺的限期，如排他性、特价或交货与付款条件、竞业禁止等)：根据布鲁塞尔一号重铸条例下的管辖权冲突规则，此类索赔具有合同性质；
- 非正式关系——一种非默认的合同关系 (即不时下达的命令)：在布鲁塞尔一号重铸条例下这样的请求具有侵权性质。
（a）谁是“突然终止”书面合约或“默契合约关系”的法官?
- 为了外国法院的利益，管辖权条款将由法国法院执行，即使它是一个不对称的条款 (最高法院，2015年10月7日，Ebizcuss.com / 苹果销售国际)。
- 在缺乏法院条款选择的情况下，如果以“突然终止”为基础提起诉讼的法国索赔人是服务提供者，例如分销商，代理人等，则法国法院可能具有管辖权 (请参阅欧洲法院 Corman Collins案， 19 12 13，C-9 / 12和布鲁塞尔一号重铸条例第7.1.b.2条)。
（b）谁是“非默认合同关系”“突然终止”的法官？
- 我们认为，法国法院可能会继续执行侵权案件中的管辖权条款，特别是明确包含侵权诉讼的条款 (最高法院，1°Ch.Civ.，2017年1月18日，n°15-26105，里维埃拉汽车/阿斯顿马丁拉贡达有限公司)。
- 在缺乏法院条款选择权的情况下，法国法院将对“突然终止”索赔具有管辖权，所以由位于发生损害事件地点的法官（布鲁塞尔一号第7.3条）负责，而该地点是“突然终止”生效的地方……即如果法国公司是受害者，该地点就在法国。
“突然终止”索赔和非欧盟共同承包商
如果一名法国受害者基于非欧盟公司的“突然终止”向法国法院提出索赔，Granarolo解决方案将不在事实上适用。在非欧盟关系中，法国法官只能继续保留侵权资格。在这种情况下，法国法院可以根据损害事件发生的地点保留其管辖权。然而，即使是基于侵权的索赔，在法国也可以承认管辖权条款。
“突然终止”索赔和仲裁
制定一项临时条款或机构仲裁条款可能是规避法国法院管辖权的最安全解决方案。理想情况下，该条款将在法国境外确定仲裁庭的席位。根据仲裁员的胜任力原则，法国法院宣布其自身无能力仲裁，除非仲裁条款明显无效或明显不适用，无论合同或侵权理由如何 (特别参见巴黎上诉法院，2019年9月5日，n / 17/03703)。
结论：外国公司不应公开管辖权和管辖法律问题。他们必须协商出一个安全港湾，否则，被终止的法国受害人将可能有权向法国法官提出“突然终止”的要求（请参阅下面第2部分的内容）
如何掌握“突然终止”法律的规则?
在法国法律适用的情况下，外国公司将面临法国商业法典L442 -1.II条对“突然终止”的制裁。 作为一项初步说明，首先必须知道，“突然终止”责任的执行是通知时间太短的结果。 因此，该方案没有制定自动补偿规则。换句话说，一旦终止的发起人发出了合理的通知，基于该通知的责任就可以被免除。
“突然终止”的先决条件：已建立的商业关系
所有合同均受该法律制度的约束，法规中规定了特定终止通知的合同除外，例如商业代理合同和公路分包合同的货物运输。
首先，必须存在一种可以通过书面合同或事实上当事双方的行为所证明的关系。这种关系可以建立在一系列默认续签的合同或由多个订单实现的正常业务流程基础之上。
第二，这种关系必须具有既定的特征。没有法律定义，但是判例法年复一年地对这一概念进行了界定，判例法已经建立了一个客观标准和一个更主观的标准。
(a) 客观标准意味着双方之间有足够长期、经常和重要的关系。关系的持续时间是最重要的标准。这种关系必须是有规律的，也就是说，它不能被打断(太频繁或太长时间)。这种关系最终必须是有意义的，并且在数量或价值上代表双方之间的业务流。
(b) 主观测试主要侧重于受害人在基于事实层面上认为继续的合同/关系（例如投资要求，几年内的预算等）将走向破裂的合理信念。相反，正是基于对共同的未来缺乏合理信念的结果，即当终止方多次提出招标要求时，终止方可以证明其缺乏稳定的品格 (除非这是一个诡计)。
提前预计“突然终止”索赔
(a) 终止可以是全部或部分的
完全破裂是通过关系的完全终止来实现的，例如终止合同、停止买方发送订单或停止供应商记录订单。但是要处理的最复杂的情况是所谓的部分破裂，它是通过对部分影响关系但不会将其减少为零的部分进行修改而得出的 (例如：价格上涨或下跌，付款或交付条件的改变)。
(b) 终止必须以合理的事先书面通知为准
通知必须以书面形式通知。没有书面通知本身就是一种违约行为。通知必须清楚地反映一方当事人全部或部分断绝关系的意愿，并且必须清楚地表明这一意愿。双方必须区分正式违约通知函和随后发出的违约通知（如适用）。在通知期间内，双方必须完全遵守所有合同条件。
在2019年改革之前，法国法律没有明确规定应遵守的事先通知的期限。如果判例法规定了若干标准，则应当指出，最重要的标准是关系的持续时间。法官还考虑到受害人所占的营业额份额、领土排他性的存在与否、产品的性质和活动的范围、受害者进行投资的重要性（特别是对于所涉关系的投资），最后是经济依赖的状态。法官们发出通知的时间长短不一。对通知的评估是逐案进行的。即使是几乎对于一段关系中的一年，也可能需要一个月的通知时间（根据关系中的其他标准进行上下调整），很难给出一个黄金法则。2019年4月24日的法令根据第l442 -1. i条把合理到期的通知期限限制为18个月。但大部分诉讼仍存在不确定性，因为只有特别长寿或特别敏感的关系，才可能导致高于18个月的通知分配时间。
法官不受合同规定的合同通知书的约束。但是，如果违约方还违反了合同规定的终止条款和条件，则受害人可以在突然终止的侵权基础上，或违反合同义务的基础上，追究违约方的责任。
排除“突然终止合同”的情况
法律制度规定了两种情况，而判例法似乎还规定了其他情况。
(a) 两个法律例外分别是不可抗力（很少被法院神圣化）和遭受终止的受害者的过失，判例法补充说，这必须是对合同承诺或法律规定（如不尊重排他性、竞业禁止、保密或变更控制责任，或未按合同规定支付到期金额）的严重违反。
当然，法官们认为自己不受界定什么构成严重不当行为的终止条款的约束。在任何情况下，因严重不当行为而终止协议的一方必须在终止协议书中明确通知对方。最重要的是，严重的不当行为会导致通知的缺少，因此，如果终止方指控严重的不当行为，但给予通知，无论是哪种情况下，法官都可能会得出结论，认为该过失不够严重。
(b) 近年来，判例法增加了其他免责的案例。在这种情况下，破裂是由当事方以外的原因造成的，如经济危机，上游或下游自身客户或供应商的损失。
无论其期限是什么，法官们还排除了定期合同第一个期限结束的假设中的“突然终止”：合同的首次续签对合同破裂的受害者构成可预见的事件，这就排除了残暴的概念；但一旦合同至少续签了一次，法官随后就可以描述受害者对新的默认续签的合法信念。
“突然终止”的赔偿
法官只赔偿暴力行为本身的破坏性后果，但至少在第L442-1.II条的范围内，不赔偿违约行为本身的后果。
基本规则非常简单：必须确定应授予的通知的期限，从中减去实际授予的通知期限。该净通知时间乘以受害人的平均每月毛利率，或在更通常的情况下，是乘以可变成本的利润，不包括因不履行合同/关系而消失的成本。被告应毫不犹豫地索要完整的会计证据，尤其是确定（较低的）利率，甚至要求就这些会计要素提供司法专业知识。通常，平均每月利润的基数包括最近24或36个月。
通常，以平均保证金计算的补偿不包括任何其他补偿。但是，受害人可以证明其由于关系破裂的残酷性而遭受了其他损失。例如由于这种野蛮行为直接导致的被解雇或受害者最近进行的投资贬值。
在预测“突然终止”时的一些实用技巧
即使法律制度仍然模棱两可，判例法极其苛刻，无法发布强有力的指导方针，但在公司计划终止一段关系/合同时，以下是一些实用建议：
- 如果定期合同可以默认续签，不续签通知必须在合同通知开始之前提前较长时间发出，以避免出现必须在不续签合同与不充分的通知之间作出选择或同意在新的期限内续签合同的情况;
- 当商业团队过于激进地改变商业关系/合同的执行条件时，必须让他们意识到部分突然终止的风险；
- 在某些情况下，发送一份带有“通知建议”的提前终止通知可能有帮助，以便尝试与另一方确认该通知；
- 在某些关系中，根据产品线的性质，以不同的通知期限来通知关系的结束也是有用的；
- 最后，最好的方法是缔结关系终止协议，确定通知的期限，并在必要时规定订单的逐步递减，这在和解协议的框架内是完整的，该协议最终将放弃任何索赔 ，包括“突然终止”。
在进入关系期限的最后阶段时，应考虑“突然终止”制度：必须仔细规划合同（或事实上的关系）终止的方式，以便掌控给对方造成损害和被起诉要求赔偿的风险。
QUICK SUMMARY: Contract negotiations do not take place in a legal vacuum. A party who negotiates contrary to the principle of good faith and then breaks off negotiations may become liable to the other party. However, the requirements for such liability are high and the enforcement of damage claims is cumbersome. At the end of the post I will share some practical tips for contract negotiations in Switzerland.
Under Swiss law, the principle of freedom of contract is of fundamental importance. It follows from the freedom of contract that, in principle, everyone is free to enter into contract negotiations and to terminate them again without incurring any liability. A termination of contract negotiations does not have to be justified either.
However, the freedom of contract is limited by the obligation to act in good faith (cf. article 2 para. 1 of the Swiss Civil Code), which is of equal fundamental importance. From the moment when parties enter into contract negotiations, they are in a special legal relationship with each other. That pre-contractual relationship involves certain reciprocal obligations. In particular, the parties must negotiate in a serious manner and in accordance with their actual intentions.
Negotiating parties must not stir up the hope of the other party, contrary to their actual intentions, that a contract will actually be concluded. Put differently, a party’s willingness to conclude a contract must not be expressed more strongly than it actually is. If a party realizes that the other party wrongly beliefs that a contract would certainly be concluded, such illusion should be dispelled in due course.
A negotiating party that terminates contract negotiations in violation of these principles, whether maliciously or negligently, may become liable to the other party based on the culpa in contrahendo doctrine. However, such liability exists in exceptional cases only.
- The fact that contract negotiations took a long time is not sufficient for incurring such liability. The duration of negotiations is, in itself, not decisive.
- It is not possible to derive liability from pre-existing contractual relationships between the negotiation parties, as for example in cases where parties negotiate a “mere” prolongation of an existing agreement. The decisive factor is not whether parties were already contractually bound before, but only whether the party that terminated the contract negotiations made the other party believe that a new agreement would certainly be concluded.
- It is not decisive whether the party who terminates contract negotiations knows that the other party has already made costly investments in view of the prospective contract. In principle, anyone who makes investments already prior to the actual conclusion of a contract does so at its own risk. Even where a party to contract negotiations knows that the other party has already made (substantial) investments in the prospective agreement, a termination of the contract negotiations will, in itself, not be considered as an act of bad faith.
What does a liability for breaking off negotiations include?
If a party violates the aforementioned pre-contractual obligations, the other party may be entitled to compensation for the so-called negative interest. This means that the other party must be put in the position it would have been if the negotiations had not taken place. Damages may include, e.g., expenses in connection with the negotiation of the contract (travel costs, legal fees etc.), but also a loss of income in cases where a party was not able to do business with third parties because of the contract negotiations. However, the other party has no right to be treated as if the contract had been concluded (so-called positive interest).
Having said that, it must be kept in mind that the requirements set by Swiss court for the substantiation of damages are rather high, so that the enforcement of a liability for breaking off negotiations will often be a cumbersome process. Therefore pursuing damage claims with relatively low amounts in dispute might often require a disproportionate effort.
Practical tips – Do’s and don’ts when negotiating contracts
- Do not overstate your willingness to conclude a contract. Be frank with your counterparty. Make it clear from the beginning of the negotiations what clauses are important to you.
- Do not tell the other party that you are willing to sign a contract, if you still have doubts or you are even unwilling to do so. Confirm that you will sign only if you are convinced to do so.
- Do not allow someone else (e.g., a representative, employee, branch office etc.) to negotiate on your behalf if you are not willing to enter into an agreement anyway. Keep an eye on how the negotiations are going on and intervene if necessary.
- Do not make costly investments before a legally binding agreement is concluded. If, for time or other reasons, such investments are necessary already before the conclusion of an agreement, insist on the conclusion of an interim contract governing such investments for the event that the envisaged agreement is not concluded finally.
In 2020, an important revision of the Swiss statute of limitations enters into force. The new law provides for longer limitation periods in cases of personal injury and extends the relative limitation periods in tort and unjust enrichment law from one to three years.
Background of the revision
In June 2018, the Swiss parliament adopted an amendment to the Swiss Code of Obligations (“CO”) pertaining to a revision of the statute of limitations. In November 2018, the Swiss government decided that the revised statute of limitations shall enter into force on 1 January 2020.
The revision was significantly influenced by asbestos cases. Under the current law, damage claims of asbestos victims were time-barred in some cases even before asbestos-related diseases could be diagnosed. In March 2014, the European Court of Human Rights held in Howald Moor and others v. Switzerland that the Swiss statute of limitations amounts in such cases to a violation of article 6 paragraph 1 of the European Convention on Human Rights (right of access to a court).
Having said that, the revision does not only concern cases of personal injury, but also includes numerous other important changes as described in the following.
Key changes regarding limitation periods
A. Tort law
In tort law, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable (revised Art. 60 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.
With the exception of cases of personal injury, the absolute limitation period remains ten years as from the date when the conduct that caused the damages occurred or ended (revised Art. 60 para. 1 CO).
In cases of personal injury, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable. Currently the relative limitation period amounts to one year only.
The new absolute limitation period in cases of personal injury amounts to twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 60 para. 1bis CO). Under the current law, there was no special absolute limitation period for cases of personal injury, so that the ordinary 10-year period applied (Art. 60 para. 1 CO).
If conduct, which gives rise to liability under tort law, is also punishable under criminal law, the (longer) limitation period under criminal law remains applicable (cf. Art. 97 of the Swiss Criminal Code). However, where a first-instance criminal judgment is rendered before the conduct is time-barred under criminal law, the limitation periods ends not earlier than three years as from that criminal judgment (revised Art. 60 para. 2 CO). The current law does not provide for such an additional three-year limitation period.
B. Unjust enrichment law
In unjust enrichment law, the new relative limitation period amounts to three years as from the date on which the injured party knows about the claim (revised Art. 67 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.
The absolute limitation period is not affected by the revision and remains ten years after the date on which the claim arises (revised Art. 67 para. 1 CO).
C. Contract law
With regard to contractual claims, the ordinary limitation period remains ten years from the due date (Art. 127 CO). Furthermore, the shorter limitation period of five years from the due date applicable to (amongst others) claims for rent, interest on capital and other periodic payments, (most) claims out of employment relationships etc. remains unchanged too (Art. 128 CO).
However, in cases of personal injury, the revised statute of limitations introduces a new relative limitation period of three years from the date on which the injured party became aware of the damage, as well as a new absolute limitation period of twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 128a CO). The current law does not provide for distinct relative and absolute limitation periods for contractual claims in cases of personal injury. Instead, the ordinary ten-year limitation period (Art. 127 CO) usually applied to such cases.
D. Summary
In summary, the most important elements of the revised statute of limitations are the longer (trebled) relative limitation periods in tort and unjust enrichment law (i.e., three years instead of one year) and the new special rules for cases of personal injury, which now benefit from a 20-year absolute limitation period.
Transitional provisions / application of the revised statute of limitations to pre-existing claims
The longer limitation periods under the revised CO apply to any claims that are not yet time-barred when the revision enters into force (i.e., on 1 January 2020; revised Art. 49 para. 1, Final Title of the Swiss Civil Code). In other words, the limitation periods of any claims that do not become time-barred until 31 December 2019 at the latest will be prolonged. This is of particular relevance with regard to claims based on tort and unjust enrichment; the short one-year relative limitation periods under the current law will be extended by another two years.
In contrast, the current law remains applicable in case the revised statute of limitations provides for shorter limitation periods (revised Art. 49 para. 2, Final Title of the Swiss Civil Code). This concerns, in particular, contractual claims in cases of personal injury. The new three-year relative limitation period under the revised law might not apply to such claims, as the current statute of limitations does not provide for a relative limitation period at all.
Further changes brought by the revision
In addition to the changes of the limitation periods set out above, the revision of the statute of limitations contains numerous further modifications. Some of them are listed in the following:
- Limitation periods do not commence or are suspended in the event that a claim cannot be asserted for objective reasons before any court worldwide (revised Art. 134 para. 1 no. 6 CO). The current law provides for such non-commencement or suspension only if the claim cannot be brought before a Swiss court.
- Parties to a dispute may agree in writing that limitation periods shall be suspended during settlement discussions, mediation proceedings or other out-of-court settlement proceedings (revised Art. 134 para. 1 no. 8 CO).
- Once a limitation period has commenced to run, waivers of statute of limitation defenses are admissible, but must not exceed ten years (revised Art. 141 para. 1 CO). Any such waivers must be in writing (new Art. 141 para. 1bis CO).
- In general terms and conditions (“GTC”), statute of limitation defenses may be waived by the party who makes use of the GTCs only. In contrast, a waiver by the party on whom the GTCs are imposed (e.g., consumers) is ineffective (new Art. 141 para. 1bis CO).
- The limitation period for an actio pauliana under the Swiss Debt Enforcement and Bankruptcy Act (“DEBA”) is extended to from currently two years to three years after service of a loss certificate, the opening of bankruptcy proceedings or the confirmation of a composition agreement with an assignment of assets (whichever is applicable; revised Art. 292 DEBA).
If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.
Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.
In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.
Europe
Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.
Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.
Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.
Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.
Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.
However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.
Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?
If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.
An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.
The race to regulating DLT in Europe
Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.
EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.
Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.
In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.
France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.
Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.
Conclusions
To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.
To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.
The author of this post is Alessandro Mazzi.
“Influencer Marketing” is a very well known topic to the jurists and operators of the advertising sector dealing with commercial communication.
There is a core principle in communication law: any form of commercial communication shall be clearly recognizable as such.
Before the diffusion of digital communication and, along with it, the proliferation of the so-called “Influencer Marketing”, the issue of recognizability of commercial communication was generally discussed when evaluating whether an advertising content was clearly distinguishable from a journalistic or an informative content (such is the longstanding issue regarding the advertorial).
For a short period of time there was a debate regarding the so-called subliminal advertising, which eventually fell into oblivion.
The necessity to point out to the consumer whether the appreciation for a product or a service shown by a well-known person – precisely an “Influencer” – (i.e. the endorsement) is genuine or not has become a much encountered and controversial topic.
It shall not be considered as spontaneous when an individual receives remuneration for wearing a fashion item, for using a smartphone, or simply when he/she receives as a gift the products that he/she promotes or other valuable products.
It is clear and proven that the spontaneous choice of an “idol” by the public has a bigger impact on these same people rather than any traditional way of advertising. Hence the abuse of surreptitious advertising on the less easily monitored channel: the web, precisely.
What measures should be taken to ensure that the consumers can understand clearly whether a post is subject of a contract or not?
The answer would be very simple.
It would be enough to require the sponsored post to contain, in clearly visible characters, terms as “Advertisement”, “Sponsored by”, “Commercial agreement” or similar notices.
In Italy, in absence of a law regulating specifically the matter, both the Istituto della Pubblicità (Italy’s Advertising Self-Regulatory Institute) and the Autorità Garante della Concorrenza e del Mercato (the Competition Authority) have expressed their opinion on this subject.
In the Italian Advertising Self-Regulatory Institute’s digital chart it is written: “in order to make the promotional nature of content posted on social media and content sharing sites recognizable, celebrities/influencers/bloggers must at the top of their post state in a clearly distinguishable manner the words: “Pubblicità/Advertising”, or “Promosso da … brand/Promoted by…brand” or “Sponsorizzato da…brand/Sponsored by…brand” or “in collaborazione con …brand” or “in partnership with the …brand”; and/or within the first three hashtags (#) use one of the following terms: “#Pubblicità/#Advertising”, or “#Sponsorizzato da … brand/#Sponsored by the … brand “ or “#ad” along with “#brand”.
In a press release of 2017 the Italian Competition Authority has required the addressees the use of the following warnings to be placed below the post together with the others hashtags (#), such as “#sponsored, #advertising, #paidad”, or, in the case of products given for free to the celebrity, “#productsuppliedby”; in particular, all these wordings should be followed by the name of the specific brand being advertised.
However, browsing the Instagram’s pages of various Influencers, it is noticeable that only a few of them are actually using the indications provided by the authorities.
And when it happens to came across Instagram’s profiles that use such indications, it is noticeable that the hashtag that is most commonly used is “#ad”, whose effectiveness (especially in Italy where terms such as “advertising”, “Adv” and, even more so, “ad” are not easily decipherable by the average consumer) raises many concerns.
So far the Italian Competition Authority intervened sending moral suasion letters to some of the main influencers and companies producing the branded goods displayed in the posts, but still no self-regulatory, administrative or state measures have been taken.
The same situation of uncertainty is likely to be found in other countries (here you can find a previous Legalmondo post on this topic in Germany: https://www.legalmondo.com/2017/11/germany-product-placement-influencer-marketing/), with the consequence that international companies are operating in an unclear context, in which it is difficult to identify what are the risks arising from behaviours considered as unlawful.
I have therefore decided to write this article in order to assess the state of Influencer Marketing in Italy and in other countries and get a better understanding of the regulations in force, the measures/judgments issued by the competent Authorities, the international trends and the best practices that could be adopted by international companies.
Since I am one of the founders of the Digital Adv Lab – an interdisciplinary observatory that studies the legal implications of marketing and digital communication initiatives – I am interested in getting in touch with all the readers involved in this topic: please feel free to enter a comment and/or contact me.
The author of this post is Elena Carpani.
最近一段时间，波兰因经验丰富的信息技术专员而闻名。每年都有数千名新的波兰信息技术专员（程序员，开发人员，测试人员，设计人员等）流向市场。他们很受国内和国际公司的青睐。
其中，有很大一部分青年才干开了自己的公司或是以自由职业者的身份给欧洲、美国、加拿大、日本、中国等国家的客户开发软件。然而，那些想与他们合作，并把软件开发交给波兰信息技术公司或是波兰自由职业者来做的企业应该意识到，在波兰，著作权主要保护的是发明人，而不是客户。因此，为了安全起见，最好遵循以下8个基本原则：
- 永远不要在无正式合同的情况下与波兰信息技术专员或信息技术公司合作。我这里指的是真正的合同——书面形式和有能代表公司做出有效行为的人员签名。书面形式非常重要，因为依据波兰的法律，那些不符合书面形式要件的著作权转让和独占许可合同是无效的。此外，在无合同的情况下，一切与知识产权相关的事宜都将适用波兰著作权法。如果外国公司想让它与波兰信息技术专员或软件公司之间产生的法律关系适用本国法，那就必须要在合同中拟定相应条款。
- 要切记，软件是受著作权法保护的作品。因此，你要考虑你是想取得全部知识产权还是只需要许可。如果你需要知识产权的全部转让，你就必须要在合同中清楚地写明，否则你获得的只是普通许可。从商业的角度来看，在多数情况下，普通许可用处不大。如果只需要许可，最好还是商量清楚，是独占许可还是普通许可。
- 与知识产权相关的条款内容应是具体且清晰的。如果你想拥有无限制反编译和分解二进制代码的权利，请在条款中写明。如果你想获得修改源代码的权利，请在条款中写明。如果你想取得从属许可，也请在条款中写明。
- 与知识产权相关的条款内容应包含软件是通过移动设备、个人电脑、其他电子装置还是网络（云端）使用的方式的描述。请相信我，当我指出哪些需要写进条款中时，这意味着这些内容你必须要写进去。否则，条款是无效的，而波兰信息技术专员可能还会在收了报酬之后告你侵权。
- 记住，要注明许可使用或知识产权转让的时间和地域范围。如果你不在合同里写清楚，那依据波兰的法律，你只能获得5年的使用许可，之后它将自动失效。
- 要谨慎地起草合同终止条款。依据波兰的法律，许可方可以提前一年通知被许可方终止无限期许可使用合同。如果你不想在大项目进行的过程中失去软件的知识产权，请确保从一开始你就规避了这个风险。
- 要确保你的合作伙伴会把所有你需要的软件文档和源代码发给你。你可以通过签订违约金条款来保障对方守约。
- 要确保你的合同中包含赔偿条款。常常，波兰信息技术公司会将一部分软件开发工作交给自由职业者来做。而他们之间是否签订了相应的合同，以及波兰信息技术公司是否取得了软件的所有权我们不得而知。因此，这就存在着某个你根本不认识的波兰信息技术专员对你提起侵犯知识产权之诉的风险。在这种情况下，赔偿条款就能帮你从你的合作伙伴那里收回损失。
Based on our experience in many years advising and representing companies in the commercial distribution (in Spanish jurisdiction but with foreign manufacturers or distributors), the following are the six key essential elements for manufacturers (suppliers) and retailers (distributors) when establishing a distribution relationship.
These ideas are relevant when companies intend to start their commercial relationship but they should not be neglected and verified even when there are already existing contacts.
The signature of the contract
Although it could seem obvious, the signature of a distribution agreement is less common than it might seem. It often happens that along the extended relationship, the corporate structures change and what once was signed with an entity, has not been renewed, adapted, modified or replaced when the situation has been transformed. It is very convenient to have well documented the relationship at every moment of its existence and to be sure that what has been covered legally is also enforceable y the day-to-day commercial relationship. It is advisable this work to be carried out by legal specialists closely with the commercial department of the company. Perfectly drafted clauses from a legal standpoint will be useless if overtaken or not understood by the day-to-day activity. And, of course, no contract is signed as a “mere formality” and then modified by verbal agreements or practices.
The proper choice of contract
If the signature of the distribution contract is important, the choice of the correct type is essential. Many of the conflicts that occur, especially in long-term relationships, begin with the interpretation of the type of relationship that has been signed. Even with a written text (and with an express title), the intention of the parties remains often unclear (and so the agreement). Is the “distributor” really so? Does he buy and resell or there are only sporadic supply relationships? Is there just a representative activity (ie, the distributor is actually an “agent“)? Is there a mixed relationship (sometimes represents, sometimes buys and resells)? The list could continue indefinitely. Even in many of the relationships that currently exist I am sure that the interpretation given by the Supplier and the Distributor could be different.
Monitoring of legal and business relations
If it is quite frequent not to have a clear written contract, it happens in almost all the distribution relationships than once the agreement has been signed, the day-to-day commercial activity modifies what has been agreed. Why commercial relations seem to neglect what has been written in an agreement? It is quite frequent contracts in which certain obligations for distributors are included (reporting on the market, customers, minimum purchases), but which in practice are not respected (it seems complicated, there is a good relationship between the parties, and nobody remembers what was agreed by people no longer working at the company…). However, it is also quite frequent to try to use these (real?) defaults later on when the relationship starts having problems. At that moment, parties try to hide behind these violations to terminate the contracts although these practices were, in a sort of way, accepted as a new procedure. Of course no agreement can last forever and for that reason is highly recommendable a joint and periodical monitoring between the legal adviser (preferably an independent one with the support of the general managers) and the commercial department to take into account new practices and to have a provision in the contractual documents.
Evidences about customers
In distribution contracts, evidences about customers will be essential in case of termination. Parties (mainly the supplier) are quite interested in showing evidences on who (supplier or distributor) procured the customers. Are they a result of the distributor activity or are they obtained as a consequence of the reputation of the trademark? Evidences on customers could simplify or even avoid future conflicts. The importance of the clientele and its possible future activity will be a key element to define the compensation to which the distributor will pretend to be eligible.
Evidences on purchases and sales
Another essential element and quite often forgotten is the justification of purchases to the supplier and subsequent sales by distributors. In any distribution agreement distributors acquire the products and resell them to the final customers. A future compensation to the distributor will consider the difference between the purchase prices and resale prices (the margin). It is therefore advisable to be able to establish the correspondent evidence on such information in order to better prepare a possible claim.
Damages in case of termination of contracts
Similarly, it would be convenient to justify what damages have been suffered as a result of the termination of a contract: has the distributor made investments by indication of the supplier that are still to be amortized? Has the distributor hired new employees for a line of business that have to be dismissed because of the termination of the contract (costs of compensation)? Has the distributor rented new premises signing long-term contracts due to the expectations on the agreement? Please, take into account that the Distributor is an independent trader and, as such, he assumes the risks of his activity. But to the extent he is acting on a distribution network he shall be subject to the directions, suggestions and expectations created by the supplier. These may be relevant to later determine the damages caused by the termination of the contract.
Influencer marketing is the trend in today’s world of advertising. Even though it is obvious that influencer marketing must observe the framework of applicable statutory provisions, the market has long been uncertain about how influencer posts are to be drafted in order to be legally compliant. The current decision of Celle Higher Regional Court (June 08, 2017 – Case 13 U 53/17) offers at least some clarity.
The judgment was issued in relation to an action for injunction by the German Association for Social Competition (Verband Sozialer Wettbewerb) against a German drugstore chain. A 20-year-old Instagram star with 1.3 million followers had advertised the drugstore chain in one of her posts. The post was only marked as advertisement at the bottom with the hashtag “#ad,” which additionally only came second in a list of six hashtags.
Celle Higher Regional Court adjudged that this type of marking was insufficient. The court requested that the commercial purpose of an Instagram post would have to be apparent at first sight. It did not consider use of the hashtag “#ad” in a “hashtag cloud” to be sufficient to mark the post as advertising.
The court left expressly open, however, whether the use of the hashtag “#ad” is generally suitable to mark advertising posts.
The state media authorities (Landesmedienanstalten) already reacted to the judgment, however, and revised their joint guide on advertising issues in social media. It now reads: “When marking a post as PROMOTION (Werbung) or ADVERTISING (Anzeige), you will be on the safe side – that much is certain. […] At the current time, we cannot recommend marking posts as #ad, #sponsored by, or #powered by.” In the future, Instagram itself intends to provide for more transparency on the platform by comprehensibly identifying advertising posts. It is currently testing the introduction of a branded content tool in Germany to make it easier for users to recognize posts as paid advertising.
Practical tip
Advertising posts in social media should always be marked as “promotion” or “advertising” at the beginning of the posts unless their commercial purpose arises directly from the circumstances. Advertisers are also advised to obligate influencers contractually to such legally compliant marking of posts, since the influencers’ behavior may be attributed to the company, as is clearly shown by the recent judgment of Celle Higher Regional Court against the drugstore chain.
The author of this post is Ilja Czernik.
法国 
意大利 
非洲 
写信给 Renato
EU – Distributed ledger technology – What happened in 2018
3 1 月 2019
-
欧洲
- 契约
- Information Technology
《法国商业法》规定，贸易商在未给予充分书面通知的情况下终止书面合同或非正式商业关系(第442-1.1条)将被制裁。在过去的二十年中，这已成为商业关系或合同终止（全部或部分终止）时所有补偿行为（最高可达24个月的毛利率以及其他损害赔偿）的经常性法律依据。
因此，与法国公司签约的外国贸易商应尽量避开该规则的管辖范围 (第一部分)，如果不能，则应理解并控制其实施 (第二部分)。
简而言之
外国公司如何避免或控制与法国法律规定的“突然终止商业关系”有关的风险？
与法国公司做生意的外国公司应该这样做：
- 与法国供应商或客户尽快达成书面（框架）协议，即使是非常简单的关系也是如此；
- 规定一项有利于外国法院或仲裁以及外国适用法律的条款，而如果不能选择该条款，则只能服从法国法院和法律。
外国公司如何才能掌控法国法律规定的“突然终止商业关系”的风险?
与法国公司做生意的外国公司应该这样做：
- 要知道，本条适用于几乎所有类型的商业关系或合同，无论是书面的还是非书面的，无论是定期的还是非定期的;
- 检查其关系/合同是否期限足够且正常和重要，以及对方是否有合理理由相信该关系/合同会继续维持；
- 给出终止或不续约（甚至是重大修改）的书面通知，其期限主要考虑到关系的持续时间，与合同通知的时限无关；
- 谨慎地劝告当事方在遭遇不可抗力和严重过失的情况下，搁置“突然终止”；
- 如果没有充分的通知，则预计赔偿金额为为每月平均毛利率与未获批准的事先通知的期限之积。
如何避免适用法国的“突然终止”规则?
在国际事务中，外国公司必须预见其关系是否将受到法国法律的管辖，并且在发生争议的情况下，是否将其关系提交到法国法院。
“突然终止合同”的法律适用范围是什么?
对于一个外国公司来说，要正确地掌握适用于“突然终止”的法国法律冲突法规则框架是相当困难的。巴黎上诉法院在2018年9月19日的裁决（RG 16/05579，DES / 娇韵诗）中隐含提及Granarolo欧盟裁决（07 14 16，N°C196 / 15），该裁决将合同资格扩展至大多数业务关系，以改善可预见性，来应对外国公司试图排除法国法律及其“突然终止”规则的行为。
突然终止书面合同或“默认合同关系”
根据关于合同适用法律的罗马一号法规 (EC No 593 / 2008，2008年6月17日)：
- 如果当事各方选择了外国法律：选择外国适用法律的条款将是有效的，并将受到法国法官的尊重 (服从OMR，请参阅下文)，前提是当事各方选择的法律是明示或确定的。
- 如果当事各方没有选择法律：法国法律可能会宣布适用，因为它可能也是分销商/加盟商所在国的法律等，或是提供合同服务功能的当事方所在国家/地区的法律。
突然终止“非默认合同关系”
如果是非正式关系 (即偶尔下达订单)，法国法官将保留侵权行为资格，并将参考适用于非合同义务法律的《罗马二号条例》(第864/2007号，2007年7月11日)。
- 如果当事各方选择了外国法律：法国法官应执行草拟的外国法选择条款，条件是该条款明确包含侵权案件。
- 如果当事各方没有选择法律：法国法律可能会宣布适用，因为这可能是损害发生的国家/地区的法律（无论是发生事件的地点还是造成间接后果的地点），是法国受害者遭受终止结果的总部所在地。
“突然终止合同”是法国的一项压倒一切的强制性规定吗?
法国法院的立场相当模糊且令人不满。 简而言之：巴黎商事法庭认为“突然终止”不是OMR，巴黎上诉法院（负责“突然终止”案件的唯一法国上诉法院）却支持OMR资格，而最高法院……对此事保持沉默。尽管罗马一号条例（或罗马二号）第9.1条缺乏严格的推理和理由，但很明显，巴黎上诉法院有司法意愿将“突然终止”归为OMR。 因此，如果向法国法院提出“突然终止”的要求，则该法国法院极有可能排除适用的外国法律，而将其替换为产生于第L 442-1. II条“突然终止”。
因此，外国公司确保“突然终止”不会妨碍合同的终止或停止续签的唯一可能性，不仅是选择一项适用的外国法律，而且是确保将争端提交外国法官或仲裁庭。
如何避免法国法院对“突然终止”索赔的管辖权?
“突然终止”索赔和欧盟内部共同承包商
欧洲法院的裁决(Granarolo, 2016年7月14日，NC196/15)区分了以下索赔:
- 书面框架合同或默认合同关系 (仅当欧洲法院所列出的证据由国家法官确定时才存在，即相互承认的关系和承诺的限期，如排他性、特价或交货与付款条件、竞业禁止等)：根据布鲁塞尔一号重铸条例下的管辖权冲突规则，此类索赔具有合同性质；
- 非正式关系——一种非默认的合同关系 (即不时下达的命令)：在布鲁塞尔一号重铸条例下这样的请求具有侵权性质。
（a）谁是“突然终止”书面合约或“默契合约关系”的法官?
- 为了外国法院的利益，管辖权条款将由法国法院执行，即使它是一个不对称的条款 (最高法院，2015年10月7日，Ebizcuss.com / 苹果销售国际)。
- 在缺乏法院条款选择的情况下，如果以“突然终止”为基础提起诉讼的法国索赔人是服务提供者，例如分销商，代理人等，则法国法院可能具有管辖权 (请参阅欧洲法院 Corman Collins案， 19 12 13，C-9 / 12和布鲁塞尔一号重铸条例第7.1.b.2条)。
（b）谁是“非默认合同关系”“突然终止”的法官？
- 我们认为，法国法院可能会继续执行侵权案件中的管辖权条款，特别是明确包含侵权诉讼的条款 (最高法院，1°Ch.Civ.，2017年1月18日，n°15-26105，里维埃拉汽车/阿斯顿马丁拉贡达有限公司)。
- 在缺乏法院条款选择权的情况下，法国法院将对“突然终止”索赔具有管辖权，所以由位于发生损害事件地点的法官（布鲁塞尔一号第7.3条）负责，而该地点是“突然终止”生效的地方……即如果法国公司是受害者，该地点就在法国。
“突然终止”索赔和非欧盟共同承包商
如果一名法国受害者基于非欧盟公司的“突然终止”向法国法院提出索赔，Granarolo解决方案将不在事实上适用。在非欧盟关系中，法国法官只能继续保留侵权资格。在这种情况下，法国法院可以根据损害事件发生的地点保留其管辖权。然而，即使是基于侵权的索赔，在法国也可以承认管辖权条款。
“突然终止”索赔和仲裁
制定一项临时条款或机构仲裁条款可能是规避法国法院管辖权的最安全解决方案。理想情况下，该条款将在法国境外确定仲裁庭的席位。根据仲裁员的胜任力原则，法国法院宣布其自身无能力仲裁，除非仲裁条款明显无效或明显不适用，无论合同或侵权理由如何 (特别参见巴黎上诉法院，2019年9月5日，n / 17/03703)。
结论：外国公司不应公开管辖权和管辖法律问题。他们必须协商出一个安全港湾，否则，被终止的法国受害人将可能有权向法国法官提出“突然终止”的要求（请参阅下面第2部分的内容）
如何掌握“突然终止”法律的规则?
在法国法律适用的情况下，外国公司将面临法国商业法典L442 -1.II条对“突然终止”的制裁。 作为一项初步说明，首先必须知道，“突然终止”责任的执行是通知时间太短的结果。 因此，该方案没有制定自动补偿规则。换句话说，一旦终止的发起人发出了合理的通知，基于该通知的责任就可以被免除。
“突然终止”的先决条件：已建立的商业关系
所有合同均受该法律制度的约束，法规中规定了特定终止通知的合同除外，例如商业代理合同和公路分包合同的货物运输。
首先，必须存在一种可以通过书面合同或事实上当事双方的行为所证明的关系。这种关系可以建立在一系列默认续签的合同或由多个订单实现的正常业务流程基础之上。
第二，这种关系必须具有既定的特征。没有法律定义，但是判例法年复一年地对这一概念进行了界定，判例法已经建立了一个客观标准和一个更主观的标准。
(a) 客观标准意味着双方之间有足够长期、经常和重要的关系。关系的持续时间是最重要的标准。这种关系必须是有规律的，也就是说，它不能被打断(太频繁或太长时间)。这种关系最终必须是有意义的，并且在数量或价值上代表双方之间的业务流。
(b) 主观测试主要侧重于受害人在基于事实层面上认为继续的合同/关系（例如投资要求，几年内的预算等）将走向破裂的合理信念。相反，正是基于对共同的未来缺乏合理信念的结果，即当终止方多次提出招标要求时，终止方可以证明其缺乏稳定的品格 (除非这是一个诡计)。
提前预计“突然终止”索赔
(a) 终止可以是全部或部分的
完全破裂是通过关系的完全终止来实现的，例如终止合同、停止买方发送订单或停止供应商记录订单。但是要处理的最复杂的情况是所谓的部分破裂，它是通过对部分影响关系但不会将其减少为零的部分进行修改而得出的 (例如：价格上涨或下跌，付款或交付条件的改变)。
(b) 终止必须以合理的事先书面通知为准
通知必须以书面形式通知。没有书面通知本身就是一种违约行为。通知必须清楚地反映一方当事人全部或部分断绝关系的意愿，并且必须清楚地表明这一意愿。双方必须区分正式违约通知函和随后发出的违约通知（如适用）。在通知期间内，双方必须完全遵守所有合同条件。
在2019年改革之前，法国法律没有明确规定应遵守的事先通知的期限。如果判例法规定了若干标准，则应当指出，最重要的标准是关系的持续时间。法官还考虑到受害人所占的营业额份额、领土排他性的存在与否、产品的性质和活动的范围、受害者进行投资的重要性（特别是对于所涉关系的投资），最后是经济依赖的状态。法官们发出通知的时间长短不一。对通知的评估是逐案进行的。即使是几乎对于一段关系中的一年，也可能需要一个月的通知时间（根据关系中的其他标准进行上下调整），很难给出一个黄金法则。2019年4月24日的法令根据第l442 -1. i条把合理到期的通知期限限制为18个月。但大部分诉讼仍存在不确定性，因为只有特别长寿或特别敏感的关系，才可能导致高于18个月的通知分配时间。
法官不受合同规定的合同通知书的约束。但是，如果违约方还违反了合同规定的终止条款和条件，则受害人可以在突然终止的侵权基础上，或违反合同义务的基础上，追究违约方的责任。
排除“突然终止合同”的情况
法律制度规定了两种情况，而判例法似乎还规定了其他情况。
(a) 两个法律例外分别是不可抗力（很少被法院神圣化）和遭受终止的受害者的过失，判例法补充说，这必须是对合同承诺或法律规定（如不尊重排他性、竞业禁止、保密或变更控制责任，或未按合同规定支付到期金额）的严重违反。
当然，法官们认为自己不受界定什么构成严重不当行为的终止条款的约束。在任何情况下，因严重不当行为而终止协议的一方必须在终止协议书中明确通知对方。最重要的是，严重的不当行为会导致通知的缺少，因此，如果终止方指控严重的不当行为，但给予通知，无论是哪种情况下，法官都可能会得出结论，认为该过失不够严重。
(b) 近年来，判例法增加了其他免责的案例。在这种情况下，破裂是由当事方以外的原因造成的，如经济危机，上游或下游自身客户或供应商的损失。
无论其期限是什么，法官们还排除了定期合同第一个期限结束的假设中的“突然终止”：合同的首次续签对合同破裂的受害者构成可预见的事件，这就排除了残暴的概念；但一旦合同至少续签了一次，法官随后就可以描述受害者对新的默认续签的合法信念。
“突然终止”的赔偿
法官只赔偿暴力行为本身的破坏性后果，但至少在第L442-1.II条的范围内，不赔偿违约行为本身的后果。
基本规则非常简单：必须确定应授予的通知的期限，从中减去实际授予的通知期限。该净通知时间乘以受害人的平均每月毛利率，或在更通常的情况下，是乘以可变成本的利润，不包括因不履行合同/关系而消失的成本。被告应毫不犹豫地索要完整的会计证据，尤其是确定（较低的）利率，甚至要求就这些会计要素提供司法专业知识。通常，平均每月利润的基数包括最近24或36个月。
通常，以平均保证金计算的补偿不包括任何其他补偿。但是，受害人可以证明其由于关系破裂的残酷性而遭受了其他损失。例如由于这种野蛮行为直接导致的被解雇或受害者最近进行的投资贬值。
在预测“突然终止”时的一些实用技巧
即使法律制度仍然模棱两可，判例法极其苛刻，无法发布强有力的指导方针，但在公司计划终止一段关系/合同时，以下是一些实用建议：
- 如果定期合同可以默认续签，不续签通知必须在合同通知开始之前提前较长时间发出，以避免出现必须在不续签合同与不充分的通知之间作出选择或同意在新的期限内续签合同的情况;
- 当商业团队过于激进地改变商业关系/合同的执行条件时，必须让他们意识到部分突然终止的风险；
- 在某些情况下，发送一份带有“通知建议”的提前终止通知可能有帮助，以便尝试与另一方确认该通知；
- 在某些关系中，根据产品线的性质，以不同的通知期限来通知关系的结束也是有用的；
- 最后，最好的方法是缔结关系终止协议，确定通知的期限，并在必要时规定订单的逐步递减，这在和解协议的框架内是完整的，该协议最终将放弃任何索赔 ，包括“突然终止”。
在进入关系期限的最后阶段时，应考虑“突然终止”制度：必须仔细规划合同（或事实上的关系）终止的方式，以便掌控给对方造成损害和被起诉要求赔偿的风险。
QUICK SUMMARY: Contract negotiations do not take place in a legal vacuum. A party who negotiates contrary to the principle of good faith and then breaks off negotiations may become liable to the other party. However, the requirements for such liability are high and the enforcement of damage claims is cumbersome. At the end of the post I will share some practical tips for contract negotiations in Switzerland.
Under Swiss law, the principle of freedom of contract is of fundamental importance. It follows from the freedom of contract that, in principle, everyone is free to enter into contract negotiations and to terminate them again without incurring any liability. A termination of contract negotiations does not have to be justified either.
However, the freedom of contract is limited by the obligation to act in good faith (cf. article 2 para. 1 of the Swiss Civil Code), which is of equal fundamental importance. From the moment when parties enter into contract negotiations, they are in a special legal relationship with each other. That pre-contractual relationship involves certain reciprocal obligations. In particular, the parties must negotiate in a serious manner and in accordance with their actual intentions.
Negotiating parties must not stir up the hope of the other party, contrary to their actual intentions, that a contract will actually be concluded. Put differently, a party’s willingness to conclude a contract must not be expressed more strongly than it actually is. If a party realizes that the other party wrongly beliefs that a contract would certainly be concluded, such illusion should be dispelled in due course.
A negotiating party that terminates contract negotiations in violation of these principles, whether maliciously or negligently, may become liable to the other party based on the culpa in contrahendo doctrine. However, such liability exists in exceptional cases only.
- The fact that contract negotiations took a long time is not sufficient for incurring such liability. The duration of negotiations is, in itself, not decisive.
- It is not possible to derive liability from pre-existing contractual relationships between the negotiation parties, as for example in cases where parties negotiate a “mere” prolongation of an existing agreement. The decisive factor is not whether parties were already contractually bound before, but only whether the party that terminated the contract negotiations made the other party believe that a new agreement would certainly be concluded.
- It is not decisive whether the party who terminates contract negotiations knows that the other party has already made costly investments in view of the prospective contract. In principle, anyone who makes investments already prior to the actual conclusion of a contract does so at its own risk. Even where a party to contract negotiations knows that the other party has already made (substantial) investments in the prospective agreement, a termination of the contract negotiations will, in itself, not be considered as an act of bad faith.
What does a liability for breaking off negotiations include?
If a party violates the aforementioned pre-contractual obligations, the other party may be entitled to compensation for the so-called negative interest. This means that the other party must be put in the position it would have been if the negotiations had not taken place. Damages may include, e.g., expenses in connection with the negotiation of the contract (travel costs, legal fees etc.), but also a loss of income in cases where a party was not able to do business with third parties because of the contract negotiations. However, the other party has no right to be treated as if the contract had been concluded (so-called positive interest).
Having said that, it must be kept in mind that the requirements set by Swiss court for the substantiation of damages are rather high, so that the enforcement of a liability for breaking off negotiations will often be a cumbersome process. Therefore pursuing damage claims with relatively low amounts in dispute might often require a disproportionate effort.
Practical tips – Do’s and don’ts when negotiating contracts
- Do not overstate your willingness to conclude a contract. Be frank with your counterparty. Make it clear from the beginning of the negotiations what clauses are important to you.
- Do not tell the other party that you are willing to sign a contract, if you still have doubts or you are even unwilling to do so. Confirm that you will sign only if you are convinced to do so.
- Do not allow someone else (e.g., a representative, employee, branch office etc.) to negotiate on your behalf if you are not willing to enter into an agreement anyway. Keep an eye on how the negotiations are going on and intervene if necessary.
- Do not make costly investments before a legally binding agreement is concluded. If, for time or other reasons, such investments are necessary already before the conclusion of an agreement, insist on the conclusion of an interim contract governing such investments for the event that the envisaged agreement is not concluded finally.
In 2020, an important revision of the Swiss statute of limitations enters into force. The new law provides for longer limitation periods in cases of personal injury and extends the relative limitation periods in tort and unjust enrichment law from one to three years.
Background of the revision
In June 2018, the Swiss parliament adopted an amendment to the Swiss Code of Obligations (“CO”) pertaining to a revision of the statute of limitations. In November 2018, the Swiss government decided that the revised statute of limitations shall enter into force on 1 January 2020.
The revision was significantly influenced by asbestos cases. Under the current law, damage claims of asbestos victims were time-barred in some cases even before asbestos-related diseases could be diagnosed. In March 2014, the European Court of Human Rights held in Howald Moor and others v. Switzerland that the Swiss statute of limitations amounts in such cases to a violation of article 6 paragraph 1 of the European Convention on Human Rights (right of access to a court).
Having said that, the revision does not only concern cases of personal injury, but also includes numerous other important changes as described in the following.
Key changes regarding limitation periods
A. Tort law
In tort law, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable (revised Art. 60 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.
With the exception of cases of personal injury, the absolute limitation period remains ten years as from the date when the conduct that caused the damages occurred or ended (revised Art. 60 para. 1 CO).
In cases of personal injury, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable. Currently the relative limitation period amounts to one year only.
The new absolute limitation period in cases of personal injury amounts to twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 60 para. 1bis CO). Under the current law, there was no special absolute limitation period for cases of personal injury, so that the ordinary 10-year period applied (Art. 60 para. 1 CO).
If conduct, which gives rise to liability under tort law, is also punishable under criminal law, the (longer) limitation period under criminal law remains applicable (cf. Art. 97 of the Swiss Criminal Code). However, where a first-instance criminal judgment is rendered before the conduct is time-barred under criminal law, the limitation periods ends not earlier than three years as from that criminal judgment (revised Art. 60 para. 2 CO). The current law does not provide for such an additional three-year limitation period.
B. Unjust enrichment law
In unjust enrichment law, the new relative limitation period amounts to three years as from the date on which the injured party knows about the claim (revised Art. 67 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.
The absolute limitation period is not affected by the revision and remains ten years after the date on which the claim arises (revised Art. 67 para. 1 CO).
C. Contract law
With regard to contractual claims, the ordinary limitation period remains ten years from the due date (Art. 127 CO). Furthermore, the shorter limitation period of five years from the due date applicable to (amongst others) claims for rent, interest on capital and other periodic payments, (most) claims out of employment relationships etc. remains unchanged too (Art. 128 CO).
However, in cases of personal injury, the revised statute of limitations introduces a new relative limitation period of three years from the date on which the injured party became aware of the damage, as well as a new absolute limitation period of twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 128a CO). The current law does not provide for distinct relative and absolute limitation periods for contractual claims in cases of personal injury. Instead, the ordinary ten-year limitation period (Art. 127 CO) usually applied to such cases.
D. Summary
In summary, the most important elements of the revised statute of limitations are the longer (trebled) relative limitation periods in tort and unjust enrichment law (i.e., three years instead of one year) and the new special rules for cases of personal injury, which now benefit from a 20-year absolute limitation period.
Transitional provisions / application of the revised statute of limitations to pre-existing claims
The longer limitation periods under the revised CO apply to any claims that are not yet time-barred when the revision enters into force (i.e., on 1 January 2020; revised Art. 49 para. 1, Final Title of the Swiss Civil Code). In other words, the limitation periods of any claims that do not become time-barred until 31 December 2019 at the latest will be prolonged. This is of particular relevance with regard to claims based on tort and unjust enrichment; the short one-year relative limitation periods under the current law will be extended by another two years.
In contrast, the current law remains applicable in case the revised statute of limitations provides for shorter limitation periods (revised Art. 49 para. 2, Final Title of the Swiss Civil Code). This concerns, in particular, contractual claims in cases of personal injury. The new three-year relative limitation period under the revised law might not apply to such claims, as the current statute of limitations does not provide for a relative limitation period at all.
Further changes brought by the revision
In addition to the changes of the limitation periods set out above, the revision of the statute of limitations contains numerous further modifications. Some of them are listed in the following:
- Limitation periods do not commence or are suspended in the event that a claim cannot be asserted for objective reasons before any court worldwide (revised Art. 134 para. 1 no. 6 CO). The current law provides for such non-commencement or suspension only if the claim cannot be brought before a Swiss court.
- Parties to a dispute may agree in writing that limitation periods shall be suspended during settlement discussions, mediation proceedings or other out-of-court settlement proceedings (revised Art. 134 para. 1 no. 8 CO).
- Once a limitation period has commenced to run, waivers of statute of limitation defenses are admissible, but must not exceed ten years (revised Art. 141 para. 1 CO). Any such waivers must be in writing (new Art. 141 para. 1bis CO).
- In general terms and conditions (“GTC”), statute of limitation defenses may be waived by the party who makes use of the GTCs only. In contrast, a waiver by the party on whom the GTCs are imposed (e.g., consumers) is ineffective (new Art. 141 para. 1bis CO).
- The limitation period for an actio pauliana under the Swiss Debt Enforcement and Bankruptcy Act (“DEBA”) is extended to from currently two years to three years after service of a loss certificate, the opening of bankruptcy proceedings or the confirmation of a composition agreement with an assignment of assets (whichever is applicable; revised Art. 292 DEBA).
If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.
Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.
In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.
Europe
Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.
Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.
Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.
Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.
Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.
However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.
Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?
If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.
An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.
The race to regulating DLT in Europe
Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.
EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.
Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.
In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.
France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.
Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.
Conclusions
To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.
To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.
The author of this post is Alessandro Mazzi.
“Influencer Marketing” is a very well known topic to the jurists and operators of the advertising sector dealing with commercial communication.
There is a core principle in communication law: any form of commercial communication shall be clearly recognizable as such.
Before the diffusion of digital communication and, along with it, the proliferation of the so-called “Influencer Marketing”, the issue of recognizability of commercial communication was generally discussed when evaluating whether an advertising content was clearly distinguishable from a journalistic or an informative content (such is the longstanding issue regarding the advertorial).
For a short period of time there was a debate regarding the so-called subliminal advertising, which eventually fell into oblivion.
The necessity to point out to the consumer whether the appreciation for a product or a service shown by a well-known person – precisely an “Influencer” – (i.e. the endorsement) is genuine or not has become a much encountered and controversial topic.
It shall not be considered as spontaneous when an individual receives remuneration for wearing a fashion item, for using a smartphone, or simply when he/she receives as a gift the products that he/she promotes or other valuable products.
It is clear and proven that the spontaneous choice of an “idol” by the public has a bigger impact on these same people rather than any traditional way of advertising. Hence the abuse of surreptitious advertising on the less easily monitored channel: the web, precisely.
What measures should be taken to ensure that the consumers can understand clearly whether a post is subject of a contract or not?
The answer would be very simple.
It would be enough to require the sponsored post to contain, in clearly visible characters, terms as “Advertisement”, “Sponsored by”, “Commercial agreement” or similar notices.
In Italy, in absence of a law regulating specifically the matter, both the Istituto della Pubblicità (Italy’s Advertising Self-Regulatory Institute) and the Autorità Garante della Concorrenza e del Mercato (the Competition Authority) have expressed their opinion on this subject.
In the Italian Advertising Self-Regulatory Institute’s digital chart it is written: “in order to make the promotional nature of content posted on social media and content sharing sites recognizable, celebrities/influencers/bloggers must at the top of their post state in a clearly distinguishable manner the words: “Pubblicità/Advertising”, or “Promosso da … brand/Promoted by…brand” or “Sponsorizzato da…brand/Sponsored by…brand” or “in collaborazione con …brand” or “in partnership with the …brand”; and/or within the first three hashtags (#) use one of the following terms: “#Pubblicità/#Advertising”, or “#Sponsorizzato da … brand/#Sponsored by the … brand “ or “#ad” along with “#brand”.
In a press release of 2017 the Italian Competition Authority has required the addressees the use of the following warnings to be placed below the post together with the others hashtags (#), such as “#sponsored, #advertising, #paidad”, or, in the case of products given for free to the celebrity, “#productsuppliedby”; in particular, all these wordings should be followed by the name of the specific brand being advertised.
However, browsing the Instagram’s pages of various Influencers, it is noticeable that only a few of them are actually using the indications provided by the authorities.
And when it happens to came across Instagram’s profiles that use such indications, it is noticeable that the hashtag that is most commonly used is “#ad”, whose effectiveness (especially in Italy where terms such as “advertising”, “Adv” and, even more so, “ad” are not easily decipherable by the average consumer) raises many concerns.
So far the Italian Competition Authority intervened sending moral suasion letters to some of the main influencers and companies producing the branded goods displayed in the posts, but still no self-regulatory, administrative or state measures have been taken.
The same situation of uncertainty is likely to be found in other countries (here you can find a previous Legalmondo post on this topic in Germany: https://www.legalmondo.com/2017/11/germany-product-placement-influencer-marketing/), with the consequence that international companies are operating in an unclear context, in which it is difficult to identify what are the risks arising from behaviours considered as unlawful.
I have therefore decided to write this article in order to assess the state of Influencer Marketing in Italy and in other countries and get a better understanding of the regulations in force, the measures/judgments issued by the competent Authorities, the international trends and the best practices that could be adopted by international companies.
Since I am one of the founders of the Digital Adv Lab – an interdisciplinary observatory that studies the legal implications of marketing and digital communication initiatives – I am interested in getting in touch with all the readers involved in this topic: please feel free to enter a comment and/or contact me.
The author of this post is Elena Carpani.
最近一段时间，波兰因经验丰富的信息技术专员而闻名。每年都有数千名新的波兰信息技术专员（程序员，开发人员，测试人员，设计人员等）流向市场。他们很受国内和国际公司的青睐。
其中，有很大一部分青年才干开了自己的公司或是以自由职业者的身份给欧洲、美国、加拿大、日本、中国等国家的客户开发软件。然而，那些想与他们合作，并把软件开发交给波兰信息技术公司或是波兰自由职业者来做的企业应该意识到，在波兰，著作权主要保护的是发明人，而不是客户。因此，为了安全起见，最好遵循以下8个基本原则：
- 永远不要在无正式合同的情况下与波兰信息技术专员或信息技术公司合作。我这里指的是真正的合同——书面形式和有能代表公司做出有效行为的人员签名。书面形式非常重要，因为依据波兰的法律，那些不符合书面形式要件的著作权转让和独占许可合同是无效的。此外，在无合同的情况下，一切与知识产权相关的事宜都将适用波兰著作权法。如果外国公司想让它与波兰信息技术专员或软件公司之间产生的法律关系适用本国法，那就必须要在合同中拟定相应条款。
- 要切记，软件是受著作权法保护的作品。因此，你要考虑你是想取得全部知识产权还是只需要许可。如果你需要知识产权的全部转让，你就必须要在合同中清楚地写明，否则你获得的只是普通许可。从商业的角度来看，在多数情况下，普通许可用处不大。如果只需要许可，最好还是商量清楚，是独占许可还是普通许可。
- 与知识产权相关的条款内容应是具体且清晰的。如果你想拥有无限制反编译和分解二进制代码的权利，请在条款中写明。如果你想获得修改源代码的权利，请在条款中写明。如果你想取得从属许可，也请在条款中写明。
- 与知识产权相关的条款内容应包含软件是通过移动设备、个人电脑、其他电子装置还是网络（云端）使用的方式的描述。请相信我，当我指出哪些需要写进条款中时，这意味着这些内容你必须要写进去。否则，条款是无效的，而波兰信息技术专员可能还会在收了报酬之后告你侵权。
- 记住，要注明许可使用或知识产权转让的时间和地域范围。如果你不在合同里写清楚，那依据波兰的法律，你只能获得5年的使用许可，之后它将自动失效。
- 要谨慎地起草合同终止条款。依据波兰的法律，许可方可以提前一年通知被许可方终止无限期许可使用合同。如果你不想在大项目进行的过程中失去软件的知识产权，请确保从一开始你就规避了这个风险。
- 要确保你的合作伙伴会把所有你需要的软件文档和源代码发给你。你可以通过签订违约金条款来保障对方守约。
- 要确保你的合同中包含赔偿条款。常常，波兰信息技术公司会将一部分软件开发工作交给自由职业者来做。而他们之间是否签订了相应的合同，以及波兰信息技术公司是否取得了软件的所有权我们不得而知。因此，这就存在着某个你根本不认识的波兰信息技术专员对你提起侵犯知识产权之诉的风险。在这种情况下，赔偿条款就能帮你从你的合作伙伴那里收回损失。
Based on our experience in many years advising and representing companies in the commercial distribution (in Spanish jurisdiction but with foreign manufacturers or distributors), the following are the six key essential elements for manufacturers (suppliers) and retailers (distributors) when establishing a distribution relationship.
These ideas are relevant when companies intend to start their commercial relationship but they should not be neglected and verified even when there are already existing contacts.
The signature of the contract
Although it could seem obvious, the signature of a distribution agreement is less common than it might seem. It often happens that along the extended relationship, the corporate structures change and what once was signed with an entity, has not been renewed, adapted, modified or replaced when the situation has been transformed. It is very convenient to have well documented the relationship at every moment of its existence and to be sure that what has been covered legally is also enforceable y the day-to-day commercial relationship. It is advisable this work to be carried out by legal specialists closely with the commercial department of the company. Perfectly drafted clauses from a legal standpoint will be useless if overtaken or not understood by the day-to-day activity. And, of course, no contract is signed as a “mere formality” and then modified by verbal agreements or practices.
The proper choice of contract
If the signature of the distribution contract is important, the choice of the correct type is essential. Many of the conflicts that occur, especially in long-term relationships, begin with the interpretation of the type of relationship that has been signed. Even with a written text (and with an express title), the intention of the parties remains often unclear (and so the agreement). Is the “distributor” really so? Does he buy and resell or there are only sporadic supply relationships? Is there just a representative activity (ie, the distributor is actually an “agent“)? Is there a mixed relationship (sometimes represents, sometimes buys and resells)? The list could continue indefinitely. Even in many of the relationships that currently exist I am sure that the interpretation given by the Supplier and the Distributor could be different.
Monitoring of legal and business relations
If it is quite frequent not to have a clear written contract, it happens in almost all the distribution relationships than once the agreement has been signed, the day-to-day commercial activity modifies what has been agreed. Why commercial relations seem to neglect what has been written in an agreement? It is quite frequent contracts in which certain obligations for distributors are included (reporting on the market, customers, minimum purchases), but which in practice are not respected (it seems complicated, there is a good relationship between the parties, and nobody remembers what was agreed by people no longer working at the company…). However, it is also quite frequent to try to use these (real?) defaults later on when the relationship starts having problems. At that moment, parties try to hide behind these violations to terminate the contracts although these practices were, in a sort of way, accepted as a new procedure. Of course no agreement can last forever and for that reason is highly recommendable a joint and periodical monitoring between the legal adviser (preferably an independent one with the support of the general managers) and the commercial department to take into account new practices and to have a provision in the contractual documents.
Evidences about customers
In distribution contracts, evidences about customers will be essential in case of termination. Parties (mainly the supplier) are quite interested in showing evidences on who (supplier or distributor) procured the customers. Are they a result of the distributor activity or are they obtained as a consequence of the reputation of the trademark? Evidences on customers could simplify or even avoid future conflicts. The importance of the clientele and its possible future activity will be a key element to define the compensation to which the distributor will pretend to be eligible.
Evidences on purchases and sales
Another essential element and quite often forgotten is the justification of purchases to the supplier and subsequent sales by distributors. In any distribution agreement distributors acquire the products and resell them to the final customers. A future compensation to the distributor will consider the difference between the purchase prices and resale prices (the margin). It is therefore advisable to be able to establish the correspondent evidence on such information in order to better prepare a possible claim.
Damages in case of termination of contracts
Similarly, it would be convenient to justify what damages have been suffered as a result of the termination of a contract: has the distributor made investments by indication of the supplier that are still to be amortized? Has the distributor hired new employees for a line of business that have to be dismissed because of the termination of the contract (costs of compensation)? Has the distributor rented new premises signing long-term contracts due to the expectations on the agreement? Please, take into account that the Distributor is an independent trader and, as such, he assumes the risks of his activity. But to the extent he is acting on a distribution network he shall be subject to the directions, suggestions and expectations created by the supplier. These may be relevant to later determine the damages caused by the termination of the contract.
Influencer marketing is the trend in today’s world of advertising. Even though it is obvious that influencer marketing must observe the framework of applicable statutory provisions, the market has long been uncertain about how influencer posts are to be drafted in order to be legally compliant. The current decision of Celle Higher Regional Court (June 08, 2017 – Case 13 U 53/17) offers at least some clarity.
The judgment was issued in relation to an action for injunction by the German Association for Social Competition (Verband Sozialer Wettbewerb) against a German drugstore chain. A 20-year-old Instagram star with 1.3 million followers had advertised the drugstore chain in one of her posts. The post was only marked as advertisement at the bottom with the hashtag “#ad,” which additionally only came second in a list of six hashtags.
Celle Higher Regional Court adjudged that this type of marking was insufficient. The court requested that the commercial purpose of an Instagram post would have to be apparent at first sight. It did not consider use of the hashtag “#ad” in a “hashtag cloud” to be sufficient to mark the post as advertising.
The court left expressly open, however, whether the use of the hashtag “#ad” is generally suitable to mark advertising posts.
The state media authorities (Landesmedienanstalten) already reacted to the judgment, however, and revised their joint guide on advertising issues in social media. It now reads: “When marking a post as PROMOTION (Werbung) or ADVERTISING (Anzeige), you will be on the safe side – that much is certain. […] At the current time, we cannot recommend marking posts as #ad, #sponsored by, or #powered by.” In the future, Instagram itself intends to provide for more transparency on the platform by comprehensibly identifying advertising posts. It is currently testing the introduction of a branded content tool in Germany to make it easier for users to recognize posts as paid advertising.
Practical tip
Advertising posts in social media should always be marked as “promotion” or “advertising” at the beginning of the posts unless their commercial purpose arises directly from the circumstances. Advertisers are also advised to obligate influencers contractually to such legally compliant marking of posts, since the influencers’ behavior may be attributed to the company, as is clearly shown by the recent judgment of Celle Higher Regional Court against the drugstore chain.
The author of this post is Ilja Czernik.