Selling your goods in a new and unfamiliar market can be a risky and costly venture, but entering into a distribution arrangement with a separate distributor can provide your business with a route to market, giving you access to new customers without committing to a presence in that territory.
If this works well, the arrangement can increase sales and enhance brand awareness outside of your usual sales area. However, if you fall out with your distributor then you can face reputational damage, confusion over who owns what, as well as a loss in sales, and you may be left with goods you cannot sell.
Simon Bean, Head of Dispute Resolution team with Wollens in Torquay outlines the options to ensure a dispute can be resolved swiftly with least damage to both parties.
Common causes of a dispute
Disputes with a distributor often arise as a result of a breach of contract and these can occur in a number of ways, for example:
- breach of exclusivity arrangements – whether by product or geography;
- pricing structures, payments, and deductions – where there is a disagreement over amounts payable and the policies for calculating payments;
- intellectual property infringement – such as involvement in counterfeiting or breach of confidentiality; or
- termination of a contract – perhaps prematurely or as the arrangement is being wrapped up.
In most cases, you will require a commercial solution which reduces any disruption to your business as quickly as possible.
Check the distribution agreement
Our first step will be to review your distribution agreement, as this will set out the terms and conditions of the arrangement between you and your distributor. A well drafted agreement will be invaluable in ensuring that everyone is clear on the terms and expectations of the relationship, including if any dispute arises. Problems often arise where the agreement is:
- poorly drafted, for example a DIY effort; or
- is out of date and does not reflect custom and practice as your business has evolved.
If the agreement is poorly drafted, our lawyers will work with you to negotiate a resolution based on what was expected between the parties at the time of drafting. If this is not possible then we can consider the alternative options available, such as protecting the legal ownership of intellectual property, or reviewing whether an injunction may be required to protect goods.
Once we have established the strength and weaknesses of your relative positions, we will be able to advise on the legal options in view of your commercial objectives.
Check which jurisdiction applies
It is likely that an agreement negotiated by a distributor in the UK will state that any disputes will be resolved under the laws of England and Wales. If another jurisdiction is stated, we can work with overseas lawyers to ensure the matter is dealt with under the correct jurisdiction.
Check time limits
In disputes where goods may be at risk, or reputational damage is at risk, time is of the essence and a fast resolution will be essential. There may be additional legislative time limits on bringing an action under a distribution agreement, and we will ensure any relevant time constraints are complied with.
Practical issues
Other practical issues may need to be addressed in the short term. For example, if you are a food manufacturer, you will want to avoid a situation where valuable perishable food products sit undistributed in a warehouse, and ultimately have to be destroyed. We will negotiate on your behalf to ensure products are protected and returned as soon as possible, or if negotiations fail, we will move to take action to seize any products which are at risk as a matter of urgency.
If you have concerns, that vital confidential information is at risk of being disseminated around the market and that this may negatively impact your brand, then we can take injunctive action on your behalf to reduce the impact on your business and your brand.
Do not forget to check your insurance arrangements to ensure valuable products are properly insured and any property where products are stored is maintained sufficiently to protect the products.
Options to resolve issues with a distribution agreement
Resolving a dispute through negotiation is likely to be the ideal scenario, as this enables you to maintain a steady sales flow, avoids having to find new a partner to work with, and ultimately avoids what may amount to a costly dispute.
However, if it is not possible to preserve the relationship, then we can work with you to ensure that key concerns are addressed, and damage is prevented or mitigated. If a dispute cannot be resolved, then it is essential that a smooth exit takes place to minimise damage.
If negotiation is not successful, arbitration or mediation are alternative options before any dispute needs to go to court.
If all else fails, we will issue a claim in court for breach of contract on your behalf, including a claim for any damages that might have arisen. A judge will then decide how to resolve the dispute, and will inevitably order costs to be paid by the unsuccessful party.
How we can help
If you experience the breakdown of a distribution agreement, we can help you look at the best options to resolve your dispute.
By taking early legal advice when a dispute arises, our experienced team can help you to resolve any issues that have arisen with the least disruption to your business, ensuring you continue to safeguard your rights and your product. Our team of experts will work with you to resolve a dispute, using whatever process is most suitable for your business.
For further information and assistance, please contact Simon Bean in the dispute resolution team on 01803 225123 or email [email protected]. Wollens has offices in Torquay, Exeter and Barnstaple in Devon.
