Some issues about Agencies and Distributorships in Brazil, Australia and New Zealand - PowerPoint PPT Presentation

1 / 17
About This Presentation
Title:

Some issues about Agencies and Distributorships in Brazil, Australia and New Zealand

Description:

Brazil Background Civil law system No stare decisis and very different civil procedure, administrative law, and tax rules Practically no discovery/disclosure, ... – PowerPoint PPT presentation

Number of Views:107
Avg rating:3.0/5.0
Slides: 18
Provided by: appsAmeri
Category:

less

Transcript and Presenter's Notes

Title: Some issues about Agencies and Distributorships in Brazil, Australia and New Zealand


1
Some issues about Agencies and Distributorships
in Brazil, Australia and New Zealand
  • Fabiano Deffenti
  • Attorney at Law (New York)
  • Legal Practitioner (Australia)
  • Barrister and Solicitor (New Zealand)
  • Advogado (OAB/RS)

2
Brazil Background
  • Civil law system
  • No stare decisis and very different civil
    procedure, administrative law, and tax rules
  • Practically no discovery/disclosure, little
    weight to oral evidence, not everyone is a
    witness
  • Lots of trips to the notary
  • Exceedingly bureaucratic tax system
  • Legislation is vague and poorly drafted

3
Brazil Background
  • Civil law system (2)
  • Academics (jurists) opinions carry a lot of
    weight
  • Court cases take years and years lots of
    appeals, though it is changing

4
Brazil Agencies, distributorships or agencies
and distributorships?
  • New Civil Code of 2002
  • Book I Obligations in General
  • Title V Contracts in General
  • Title VI The Various Types of Contract
  • Chapter XII Agency and Distributorships
  • Very poorly drafted created a problem where
    there wasnt one

5
Brazil Agencies, distributorships or agencies
and distributorships?
  • New Civil Code of 2002 (2)
  • View one three different relationships
  • Agency (Civil Code Representatives Law)
  • Distribution (Civil Code)
  • Agency and distribution (Civil Code)
  • View two two different relationships
  • Agency (Civil Code Representatives Law)
  • Distribution (Civil Code)

6
Brazil Agencies, distributorships or agencies
and distributorships?
  • New Civil Code of 2002 (3)
  • Courts and jurists agree that agency
    relationships are governed by the Representatives
    Law
  • Representatives Law offers protections similar to
    those in EUs Commercial Agents Directive
  • Be very careful when drafting the agreements as
    parties cannot contract out of the applicable
    provisions!

7
Brazil Agencies, distributorships or agencies
and distributorships?
  • Better view is that distributorships will exist
    where
  • Brazilian party acquires the goods for re-sale
  • Tax issues may want you to reconsider this
  • Distributor is not exclusive
  • Distributor trades under a different name

8
Brazil Things to watch out for
  • Very tough Labor Laws may apply depending on the
    level of control
  • Consumer Defense Code is very tough
  • Corporate veil not respected
  • Strict liability standard
  • Customs are not trade-friendly
  • Slow and bureaucratic
  • Tough fines apply on slightest mistakes

9
Brazil Things to watch out for
  • Technology transfers
  • Contracts must be registered with INPI or else
    there will be problems with royalties not being
    paid
  • Trademark protection
  • First to file system applies
  • Different application for each class
  • Taking at least 5 years to get registrated

10
Brazil Things to watch out for
  • Domain name registration
  • .br domain names must be registered by
    Brazilian-registered companies or Brazilian
    residents
  • Arbitration, choice of law and choice of forum
  • Arbitration is the surest way of getting around
    the Brazilian legal system and actually choosing
    to have the matter litigated abroad

11
Australia
  • Very similar to the UK system, but with a federal
    written constitution
  • Not a schedule like the Canadian
  • Court system is very efficient
  • Discovery/disclosure is stricter than in the U.S.
  • Legal costs are awarded to the winner
  • Foreign parties must give security for costs
  • Champerty and maintenance prevent lawyers from
    charging on a percentage of proceeds basis

12
Australia
  • Arbitration
  • Infamous Esso Australia Resources Ltd v. Plowman
    decision arbitrations are presumed to be public,
    unless the parties agree otherwise
  • Foreign arbitration awards from N.Y. Convention
    members can be enforced without the need for
    recognition directly at the local/county court
    level

13
Australia
  • Choice of law and forum
  • Flexible, but with some restrictions
  • See Akai Pty Ltd v. Peoples Insurance Co Ltd and
    Golden Acres Ltd v. Queensland Estates Pty Ltd
  • But see the English decision in Akai Pty Ltd v.
    Peoples Insurance Co Ltd
  • Section 67 of the Trade Practices Act 1974

14
Australia
  • Misleading and deceptive conduct
  • Section 52 of the Trade Practices Act 1974
  • (1) A corporation shall not, in trade or
    commerce, engage in conduct that is misleading or
    deceptive or is likely to mislead or deceive.
  • (2) Nothing in the succeeding provisions of this
    Division shall be taken as limiting by
    implication the generality of subsection (1).

15
Australia
  • Other deeming provisions (merchantability,
    fitness for purpose, etc) where goods under
    A40,000
  • Trademarks
  • First to file system
  • Section 129 of the Trade Marks Act 1995 (Cth)
    careful when sending cease and desist letters
  • No tort of unfair competition

16
New Zealand
  • A single jurisdiction
  • Opted out of being a part of the Australian
    Commonwealth
  • Protections similar to Australia under the Fair
    Trading Act 1986 and Consumer Guarantees Act 1993
  • Trademarks same problems as Australia with cease
    and desist letters
  • Arbitration and choice of law UNCITRAL model and
    confidentiality presumed

17
  • Fabiano Deffenti
  • fdeffenti_at_cmted.com.br
  • Telefone (51) 3022-5550
  • Celular (51) 8111-5550
  • Skype name Deffenti
Write a Comment
User Comments (0)
About PowerShow.com