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Commercial Agent and Exclusive Distributor: Where Should the Analogy End? Return to a Recent Development in Swiss Law Regarding Exclusive Distributorship Contracts

Author: Julien BURDA

Type: Article

ref: 42009455-470

N0:4 of 2009

Pages: 455-470

The decision of the Swiss Supreme Court dated May 22nd, 2008 concerning exclusive distributorship agreements is an important step in the development of the legal regime for this kind of agreement. Prior to this reversal, the High Court had always been reluctant to grant compensation for loss of clientele developed by an exclusive distributor at the end of an agreement. The Court ruled for the first time that an exclusive distributor can be placed in a similar situation to that of an agent, which explains the analogical extension of the provision related to agency contracts. Such extension relies on the direct control exercised over the exclusive distributor by the supplier. It raises nevertheless difficulties concerning the calculation of the loss of clientele compensation, for which the analogy is less justified. However, the 2008 decision may have important consequences as parties to international distribution agreements often choose Swiss law as the applicable law.