Abstract
In the context of internet sales can we still speak about a traditional exclusivity clause inserted in commercial contracts? As a market development, we can see that even without the COVID 19 pandemic, Internet sales were boosted all over the world. With international actors such as Amazon, JD.com Inc., E-bay or Apple as well as many others, we have seen ecommerce sale rise up to 3.46 trillion US dollars in 2019 alone. Even if these sales only amount to 16.4% of global sales, according to digital commerce specialists, the numbers will be much higher during and post pandemic. This being said, is there any place left for traditional exclusivity clauses inserted in many commercial contracts such as franchise, distribution or agency contracts? What will happen with specific clauses that grant one of the parties the right to an exclusive use of a territory or the right to address a certain population? During the years, doctrine as well as jurisprudence has shown that exclusivity clauses must be drafted with balance; the risk is huge in the sense that it might restrict the free access to the market, offer clients products that are of lesser quality or lead to a stranglehold of the market. On the other hand, the use of contracts that contain exclusivity clauses might become irrelevant for the beneficiary as they will no longer offer the protection and specific interest. The study aims to analyse exclusivity clauses as defined in the national and international regulations as well as study the current framework and the jurisprudence’s position on exclusivity clauses, especially the ones related to e-commerce.
Highlights
Electronic commerce, known as E-Commerce, occurs daily when sellers and buyers use the internet to conduct business transactions
In this study we have observed that the Romanian regulation is much less developed and much less aimed at protecting either parties of the contract that contains an exclusivity clause; we found no mention of how an exclusivity clause should work if inserted in the contract that covers e-commerce sales as well as sales in a brick and mortar shop
The European legislation as well as the approach of the European Court of Justice clearly states that sales conducted over the internet – though some merchants might not like this liberal approach to being able to sell almost everything over the internet, and some criticize the lack of accuracy and uncertainty within the European guidelines, no one can sustain that exclusivity clauses are strictly forbidden, even when speaking about e-commerce
Summary
Electronic commerce, known as E-Commerce, occurs daily when sellers and buyers use the internet to conduct business transactions. The retail landscape has suffer a substantial transformation following the advent and spectacular evolution of the internet, and thanks to the ongoing digitalization of modern life, consumers from virtually every country profit from the perks of online transactions and the main reasons why consumers prefer online shopping are: the ability to shop 24/7, the ability to compare prices, online sales/better prices, to save time, greater variety, to locate hard to find items and for products which are not sold in their own country. When combining internet sales contracts with exclusivity clauses in drafted in traditional contracts such as distribution agreements, franchise agreements, or agency agreements (that involve in common law mandate, intermediation, commission and agency contracts), what is the say of the traditional approach of contract law? In a second phase we shall look upon the European regulation as well as the position of the European Court of Justice on agreements that exclude or limit sales over the internet as a result of a direct or indirect exclusivity clause
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