Areas of Practice

The focus of MERCATORIUS is on national and, above all, international commercial and business law, both in terms of advice and litigation. MERCATORIUS works as a practice group, which merges and ensures knowledge. Our business experience and our entrepreneurial thinking ensure that clients can perceive opportunities and manage risks. Our litigation experience guarantees that your legal position is enforced and defended in the best possible way, even in conflict situations.

The first question in international cases involving two or more legal systems is that of the applicable law. Within the EU this is regulated for contractual claims in the Rome I Regulation, for non-contractual claims in the Rome II Regulation. Outside the scope of application of the above-mentioned regulations, private international law in German law is found in the Introductory Act to the German Civil Code (EGBGB), in Belgian law, for example, in the Code de droit international privé.

The subject of international civil procedure law is the question of the international jurisdiction of state courts in cross-border disputes. Within the EU, this is regulated in the Brussels Ia Regulation, in cases involving member states of the EEA in the Lugano II Agreement. These regulations allow for the determination of the courts having jurisdiction for a legal dispute and provide for conflict resolution in the event that several courts are seized of the same matter in dispute. They regulate the scope and admissibility of jurisdiction agreements. Finally, they contain the rules for cross-border enforcement.

The United Nations Convention on Contracts for the International Sale of Goods (CISG/Convention des Nations Unies sur les contrats de vente internationale de marchandises, CVIM), also known as the Vienna Convention of 11 April 1980, has been ratified by 93 countries around the world as of 16 January 2020, including all EU member states with the exception of Portugal and Malta (as well as Great Britain). China, Russia and the United States, to name but a few, have also ratified the UN Sales Convention. The UN Sales Convention applies to cross-border contracts for the sale of movable goods for commercial purposes. It is one of the most important, if not the most important set of rules in the field of international law. Correctly applied, the UN Sales Convention is a very effective instrument in international trade. Based on our experience in the enforcement of commercial claims abroad, we recommend that sales contracts be concluded in accordance with this law. Disadvantages in comparison to the German law of the BGB and HGB can be compensated by intelligent contract design, especially general terms and conditions for cross-border trade.

One focus of our activities is the drafting of general terms and conditions of purchase and sale. In the area of international trade, we give preference to the UN Convention on Contracts for the International Sale of Goods, adapted to the specific needs of our clients, over the reflexive retreat to the non-uniform law of the home country. This approach is due to the fact that effective limitations of liability through general terms and conditions are virtually impossible in German law. Furthermore, we know from our daily experience in the enforcement or defense of claims in cross-border disputes that it is incomparably easier to enforce a claim on the basis of UN sales law before a foreign court than under German law. Effective protection of your legal position and enforcement of your legitimate claims are our focus.

Many of our long-standing clients have their contracts systematically reviewed in advance. The main issue here is the effective limitation of liability. In some legal systems, for example in French law, there is an irrefutable presumption of knowledge of a defect, in Belgian law a rebuttable presumption. Many limitations of liability that were negotiated in good faith thus later prove to be ineffective. The effort of examining a contract before its conclusion is much less than the legal defense after the conclusion of a suboptimal contract.

Sales representatives are an important instrument for the market presence of a company abroad. The commercial agency law in the EU is national law, but its implementation must be legally compliant with the Commercial Agents Directive (Directive 86/653/EEC of 18 December 1986). Knowledge of the different forms of the respective national legal systems with regard to notice periods and compensation claims is therefore indispensable.

Besides the commercial agent, the authorized dealer is one of the most frequently chosen alternatives for establishing a market presence abroad. Authorized dealer law is neither international nor European law. However, there are countries such as Belgium, for example, which, unlike Germany, have specific and mandatory rules for the authorized agent and in particular provide for a claim for compensation similar to that of the commercial agent. In certain cases, German law provides for an analogy to commercial agency law in the case of the authorized dealer. In French distribution law, there are commercial law provisions which massively restrict the freedom of contract in the event of termination. We are familiar with the international aspects of distribution law.

We have relevant experience in setting up and supporting franchise systems and direct sales. Especially here, different legal systems must be observed, especially when it comes to pre-contractual duties of disclosure. However, the protection of industrial property rights is just as much in focus as the observance of antitrust regulations in the area of non-competition clauses and selective distribution. Finally, if pursuing commercial activities in another country or directing activities to it, the consumer protection regulations that are mandatory there must be observed.

Very often companies are present abroad through production or sales companies, sometimes also through dependent branches. We support you in establishing foreign permanent establishments and in setting up partnerships or corporations. For this purpose, we have a network of tax consultants, notaries and personnel offices to accompany our clients’ activities abroad. Due to the reform of Belgian company law in May 2019 and the implementation of the so-called foundation theory, Belgium has become a very interesting location for internationally operating companies.

A first step into the foreign market is often made through cooperation and joint ventures, whether in sales or research. It is precisely here that the contractual determination of the applicable law, the determination of possible places of jurisdiction in the event of disputes and, in particular, the knowledge of European-influenced antitrust regulations is indispensable, especially with regard to the prerequisites for the effective protection of business and trade secrets and the safeguarding of non-competition clauses.

Cross-border transport law is governed by the CMR (Convention relative au contrat de transport international de marchandises par route; Convention on the Contract for the International Carriage of Goods by Road). Compared to national law, this contains many special rules that must be observed. It is also important to observe the Incoterms of the International Chamber of Commerce (ICC), now in force as of 2020.

In Germany and Belgium, we can represent our clients before all state courts of first and second instance. In other countries, we have long-standing contacts that guarantee effective legal representation of our clients. Due to the bar admission in both countries, we can align our litigation strategy with the interests of our clients and take into account the specifics of litigation in the respective legal systems.

There are many legal systems in the world that either do not accept jurisdiction agreements or do not allow the enforcement of foreign judgments. In these cases, there is no alternative to agreeing on an arbitration court. We regularly appear before arbitration tribunals such as the German Institution of Arbitration (DIS), the International Chamber of Commerce (ICC), the Centre belge d’arbitrage et de médiation (Cepani), the Nederlandse Arbitrage Instituut (NAI) or the Swiss Chambers’ Arbitration Institution. We are familiar with the arbitration rules of the most important arbitration institutions and with the arbitration rules of the national codes of civil procedure as well as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958.

Many of our lawyers are business mediators and are trained and active in the field of International Collaborative Law (Cooperative Practice). Out-of-court dispute resolution is a top priority for us. If you wish to avoid protracted and cost-intensive legal disputes, we are at your disposal. Mr. Imfeld is President of the Center for International Collaborative Law/Centre International de Droit Collaboratif, based in Liège. For international matters, the Cooperative Practice is the procedure of our choice.


Guido Imfeld