Enterprise and business
Commercial contracts
Commercial contracts – pre-contractual stage, contractual stage, post-contractual stage and legal conflict
When drawing up international commercial agreements, it is important to first determine exactly what the parties are intending and what the goal is they want to work towards. Below is an overview of the different moments when drawing up a commercial agreement is important. The purpose of all agreements mentioned is to protect your company as well as possible from a legal point of view and to create clarity between the parties what has been agreed and what the mutual expectations are. Generally speaking, there are four stages with regard to drawing up an international commercial agreement.
Four stages in the drafting of international commercial contracts
- Pre-contractual phase – the preliminary phase of an international commercial agreement. This is where the parties want to establish their intention to do business together, by means of a Letter of Intent. It is also possible, for example, that parties already have an agreement in certain areas, in which case it is more convenient to draw up a Memorandum of Understanding. Also called a MOU.
- Contractual phase – drawing up an international commercial agreement. This is when the parties have reached agreement on commercial matters and there is a need to lay down the agreements that apply at that time. A number of examples of this type of commercial agreements or contracts are long-term agreements, fixed-term commercial agreements, buy/sell agreements, joint-venture agreements, etc. If it concerns the sale of certain products and/or services of your company, this would be a purchase or sale agreement of certain products or services or if it concerns indirect sales, an agency agreement, distribution agreement or franchise agreement.
- Post-contractual phase – the phase after the agreement or contract has been concluded. This is the phase where the agreed commercial agreement is carried out by the parties. It may be that adjustments have been made by both parties with regard to the implementation of the commercial agreement, then it is possible to draw up an Addendum to be attached to the commercial agreement.
- Legal conflict after the commercial agreement has been concluded. This is the phase where the parties are no longer in accordance with the applicable agreements or when one of the parties has a different view of the applicable agreements. In such cases, the attorney at law will be able to advise your company about which agreements have been made and what the possibilities are to, for example, terminate or cancel the commercial agreement.
More about enterprise and business:
Click further if you would like to know more about how we can advise you in the following areas/topics:
SPECIALIZED LAWYERS
These are our lawyers who specialize in this area.
Gentia Niesert
Peter de Graaf
More about Entrepreneurship & Business
Terminating an Agency agreement by the Principal
An agency agreement (“Agency Agreement”) may be terminated with or without cause and below you will find a practicable explanation on which steps need to be considered. Please note that terminating an Agency Agreement may be done through the Cantonal Courts or by taking extra-judicial steps as set out in article 6:265 of the DCC. The EC directive (86/653/EEG) is implemented in the Netherlands in articles 7:428 to 7:455 of the Dutch Civil Code (“DCC”), which is mostly compulsory law, which means that deviation by agreement is generally not possible and that these provisions are overriding. This article will only address the situation where the Principal terminates or rescinds the Agency Agreement. My next article will address the situation of the Agent.
The shareholders’ agreement: what if agreements are not kept?
In my previous contributions "A shareholder agreement to make your startup investor-proof" and "The shareholder agreement: some practical tips" I already wrote about the usefulness and necessity of the shareholder agreement. In order to avoid conflicts with, for example, future investors, it is wise to make good agreements about the cooperation. Not only agreements about the positive aspects of the cooperation, but above all agreements about what should happen if the cooperation does not go as expected.
Bill on Homologation Private Placement Significant change in insolvency law is imminent
A very important change in insolvency law is imminent. This change concerns the possibility of a debtor's offering a composition to creditors. In the current situation, there is only an arrangement for the compulsory imposition by the court of an arrangement with creditors in suspension of payments or bankruptcy. In the Bill on the Homologation of Private Agreements (WHOA), the possibility has been included that a compulsory composition without a moratorium or bankruptcy can be concluded. This will drastically change the possibilities for resolving problematic debts. This change is important for debtors, but also for their providers of capital, such as creditors and shareholders.
