A Dutch and a Swiss company concluded a framework agreement for the non exclusive distribution of certain products and on the same day, a sales contract of the same products. The framework contract on distribution contained no choice of law whereas the sales contract was to be governed by Swiss law. The sales contract contained elements of distribution as for instance the clause on non-exclusivity. The Dutch buyer claimed that the Swiss seller did not fulfil its obligations deriving from the distribution agreement and therefore refused to make payment for the sale. The seller sued for payment. In counterclaim, the buyer asked for the setting aside of the distribution agreement.
The Court stated that CISG does not apply to distributorship agreements. The framework contract could not be regarded as a sale because the most important elements of the sales contract were in fact laid down in the later contract. The seller's claim was rejected under the applicable domestic law. |