Commercial law is the so-called special form of mercantile law. Accordingly, the German Commercial Code (HGB) contains special provisions for merchants compared to the German Civil Code (BGB). It regulates, among other things:

• Commercial transactions, in particular commercial purchase and transactions on a commission basis
• Representation options for commercial transactions (in particular general commercial power of representation and commercial authority to act)
• Contractual rights and obligations, e. g. separate obligations of the buyer to inspect and complain about goods. If he does not fulfil these obligations, he may lose his warranty claims for this reason alone.

However, insofar as the HGB does not stipulate any special requirements, the rules of the BGB apply.

Closely linked to commercial law is distribution law. This refers to the contractual and commercial law of distribution, i.e. the sale of goods and services. In particular, it includes the law of sales intermediary relationships, which primarily includes the:

• Commercial agency law
• Authorised dealer law
• Franchise law

We provide advice on selecting and setting up the appropriate distribution structure and subsequently on drafting, negotiating and terminating all types of distribution agreements.

Commercial law is largely a special contract law. The focus here is primarily on:

• Drafting and negotiating contracts
• Drafting, reviewing and updating general terms and conditions (GTC)/terms and conditions of purchase and sale for B2B and B2C
• Non-disclosure agreements (NDA)
• Competition law related issues

Compliance violations are more likely to occur in cross-border business than in domestic business.

The question of “whether” a compliance management system (CMS) should be set up is ultimately no longer an issue today, as it is seen as part of good corporate organisation. The question is therefore rather “how” the compliance management system should be organised.

• Italian Legislative Decree No. 231/2001

A legal comparison with the implementation of corresponding regulations in other countries can be helpful in this context:

For example, under Articles 6 and 7 of Italian Legislative Decree No. 231/2001 of 8 June 2001 (decreto legislativo 8 giugno 2001, n. 231) on corporate criminal liability, a company is exempt from liability if it can prove that an effective organisational model has been set up to prevent the infringement in question.

• The Act on Corporate Due Diligence Obligations in Supply Chains (Lieferkettensorgfaltspflichtengesetz – LkSG)

There are considerable challenges posed by the LkSG, which imposes binding due diligence obligations on supply chain-related compliance. It is important to integrate the requirements of the LkSG into existing compliance management systems.

The UN Convention on the International Sale of Goods (CISG) is of significant importance here. It is a so-called uniform law: it directly standardises the substantive law in the member states and therefore takes precedence over private international law and national substantive law.

• Scope of application

The UN Convention on Contracts for the International Sale of Goods (CISG) is generally applicable when a purchase or manufacturing contract for goods is concluded between commercial sellers and the parties have their place of business in different countries that have ratified the CISG. The parties may also expressly exclude the application of the UN Convention on Contracts for the International Sale of Goods by contract.

• Scope of regulation

The UN Convention on Contracts for the International Sale of Goods does not provide a comprehensive set of rules, but is limited to provisions on the conclusion and performance of contracts with a focus on the regulation of the primary and secondary rights and obligations of the seller and the buyer (Art. 4 p. 1 CISG) as well as on the consequences of defaults in performance.

• The seller’s obligations are regulated in Art. 30-52 CISG. Accordingly, he has in particular the following obligations:
  • Delivery of the goods
  • Handover of corresponding documents
  • Transfer of property in the goods
• The buyer’s obligations are stipulated in Art. 53-65 CISG, primarily:
  • Payment of the agreed purchase price
  • Obligation to accept the goods

Private international law

In cases relating to foreign national legal systems, the first question that arises is which legal system is applicable to the cross-border situation and how this is to be determined. This requires knowledge of private international law, i. e. how to deal with conflict of laws issues. For example, is there a:

• Choice of law (Art. 3 Rome I Regulation)
• Jurisdiction or arbitration clause
• Choice of uniform law such as the UN Convention on Contracts for the International Sale of Goods (CISG) or the CMR

International civil procedural law and arbitration law

“Being right alone is not enough”: International civil procedural law as part of the law regulating international civil proceedings contains rules on the:

• Jurisdiction of the courts,
• Recognition and enforcement of foreign judgements
• Cooperation between the states involved in cross-border civil proceedings

However, if the parties have concluded and made effective a formal arbitration agreement, this agreement can serve as the basis for the legal dispute to be settled before a court of arbitration.