Distributorship agreements and the CISG

According to its Art. 1(1), the 1980 Sales Convention applies to "contracts for sale of goods", without further specifying what this term means. In practice under the Convention, this has lead to uncertainties in cases where the parties had entered into a distributorship agreement (distribution agreement, exclusive distributor ship agreement, framwork agreement etc.), i.e. a contract that imposes obligations on the parties involved that are aimed at the goods' distribution and may (or may not) include obligations to deliver and pay for certain amounts of goods.

In case law under the CISG, courts have inter alia reached the following results in assessing the Convention's applicability to the distributorship agreement concerned:

The CISG does not apply to distributorship agreements:

Helen Kaminski Pty. Ltd. v. Marketing Australian Products, Inc.
U.S. District Court for the Southern District of New York
USA, 21 July 1997 – 97-8072A, M-47 (DLC), CISG-online 297

Held that the a distributor agreement is at least not governed by the CISG if it does not specifically identify the goods sold, or if the goods identified in the distributor agreement are not the goods that are the subject of the dispute

Viva Vino Import Corp. v. Franese Vini S.r.l.
U.S. District Court for the Eastern District of Pennsylvania
USA, 29 August 2000 – CIV.A.99-6384, CISG-online 675

Held that the CISG does not apply to distributorship contracts that do not cover the sale of specific goods and contain definite terms regarding quantity and price

Amco Ukservice et al. v. American Meter Comp.
U.S. District Court for the Eastern District of Pennsylvania
USA, 29 March 2004 – Civ. A. 00-2638, CISG-online 1664

Multi-Juice, S.A. et al. v. Snapple Beverage Corp. et al.
U.S. District Court for the Southern District of New York
USA, 01 June 2006 – 02 Civ. 4635 (RPP), CISG-online 1229

Held that the Sales Convention does not apply to distribution agreements because Art. 1 CISG fails to indicate that it does

Mineral water and wooden pallets case
Spoljnotrgovinska arbitraža pri Privrednoj komori Srbije (Foreign Trade Court of Arbitration of the Chamber of Commerce and Industry of Serbia)
Arbitration, 13 November 2007 – T-25/06, CISG-online 1794

The arbitrator found the agreement of the parties, even though titled "sales contract" in fact to be a distribution contract and held the CISG, therefore, not to be applicable

Slovenian-Serbian distribution agreement case
Viši trgovinski sud/Виши трговински суд (Serbian Commercial Court of Appeal)
Serbia, 22 April 2008 – Pž. 6104/2007(1), CISG-online 1990

A distribution contract is not subject to the CISG but rather domestic law

Brasserie d'Achouffe N.V. et al. v. De Kikvorsch B.V.
Rechtbank Arnhem (District Court Arnhem)
Netherlands, 23 April 2008 – 159535 / HA ZA 07-1356, CISG-online 5103

The court did not even consider the CISG to be potentially applicable to the termination of a distribution agreement, but instead applied Art. 4 Rome Convention

Claus Ettensberger Corp. v. TechArt Automobildesign GmbH
U.S. District Court for the Central District of California
USA, 04 May 2011 – 2:11-cv-00051-JHN-JCx, CISG-online 4648

Held that oral distribution agreement between a German manufacturer and a U.S. distributor is not governed by the CISG

German dietary products (exclusive distribution agreement) case
Sąd Apelacyjny w Warszawie (Court of Appeal Warsaw)
Poland, 15 May 2015 – VI ACa 1937/13, CISG-online 2783

Korean-Turkish distribution agreement case
Korea Commercial Arbitration Board (KCAB)
Arbitration, 2017, CISG-online 5463

The dispute concerned (only) the allegedly unlawful termination of the distribution agreement by the supplier, after the distributor had registered the supplier's trademark without the supplier's permission - held that the CISG did not apply to the dispute at hand

Reecon North America, LLC v. Du-Hope Int'l Group et al.
U.S. District Court for the Western District of Pennsylvania
USA, 20 June 2019 – 2:18-CV-00234-JFC, 2:18-CV-00631-JFC, CISG-online 4425

"Membership agreement" and "cooperation agreement" at issue held to describe distributorship arrangements outside the scope of the CISG, inter alia because they didn't identify specific goods or specific prices and quantities. The claims brought went to the fundamental structure and implementation of the parties’ distribution relationship; held that the fact that goods were ordered and shipped pursuant to a distributorship agreement does not bring that arrangement within the scope of the CISG.

The CISG does apply to distributorship agreements:

Distribution agreement for fork lifts case
Oberlandesgericht München (Court of Appeal Munich)
Germany, 22 September 1995 – 23 U 3750/95, CISG-online 208

Fitness equipment case I
Landgericht München I (District Court Munich I)
Germany, 09 December 1996 – 14 HKO 3315/96, CISG-online 405

Imperial Bathroom Company v. Sanitari Possi S.p.A.
Corte Suprema di Cassazione (Italian Supreme Court)
Italy, 14 December 1999 – 895, CISG-online 1314

Chemische Fabrik Budenheim KG v. Bavaria Corp. Int’l
U.S. District Court for the Middle District of Florida
USA, 08 July 2009 – 6:08-cv-1182-Orl-22DAB, CISG-online 4578

Distribution agreement between a German manufacturer and a U.S. distributor contained a choice-of-law clause in favor of German law "including the CISG" - CISG held to be applicable to the distribution agreement.

Dupiré Invicta Industrie SA v. Gabo Sp. z o.o.
Cour d'appel de Reims (Court of Appeal Reims)
France, 04 September 2012 – 11/02698, CISG-online 3141

Accuratus UAB v. IDS Borjomi Beverages Co. N.V.
Lietuvos apeliacinis teismas (Court of Appeal of Lithuania)
Lithuania, 26 February 2015 – 2A-270-196/2015, CISG-online 5138

CISG applied to the termination of an exclusive distribution agreement between a Georgian producer of mineral water and a Lithuanian distributor (Arts. 64 and 71 CISG) and to the distributor's claim because of the unlawful termination (Art. 74 CISG, granting inter alia damages for marketing expenses incurred under the distribution agreement)

Unclear:

Marc Engineering A/S v. [...]
Rechtbank Arnhem (District Court Arnhem)
Netherlands, 29 August 2007 – 149799, CISG-online 5098

Literature:

Maria del Pilar Perales Viscasillas, 'Extending the Scope of the 1980 Vienna Convention on the International Sale of Goods to Framework Distribution Contracts', in: Ingeborg Schwenzer (ed.), 35 Years CISG and Beyond, The Hague: Eleven International Publishing (2016), 115–138 [– in English]

Maria Pilar Perales Viscasillas, 'International Distribution Contracts and CISG', in: Ingeborg Schwenzer, Yeşim M. Atamer & Petra Butler (eds.), Current Issues in the CISG and Arbitration, The Hague: Eleven International Publishing (2013), 43–58 [– in English]

Antonija Zubović & Mihaela Braut Filipović, 'Significance of the CISG for franchising and distribution agreements in the EU market', in: Vinko Kandžija & Andrej Kumar (eds.), Economic Integrations, Competition and Cooperation , Rijeka: Ekonomski fakultet Sveu?ilišta u Rijeci (2013), 154–167 [– in English]