When companies staring looking at entering the Brazilian market, they generally seek to sell their goods or services. The appointment of agents can be tricky, as mandatory provisions force foreign companies to be bound by Brazilian law. However, the appointment of distributors is different, as the Superior Court of Justice has consistently ruled in favour of allowing distribution agreements to be governed by foreign law.
Should you appoint an agent or a distributor?
It depends. Often the decision between appointing an agent or distributor will depend on the sophistication of the buyers (and their willingness to deal with the stresses of importing goods into Brazil) and the taxes applicable to the product, service or IP right being supplied to Brazil.
Invariably foreign companies seek distributors that are willing to take all risks. While that may sound ideal from the supplier’s viewpoint, due to the heavy taxes that apply to the importing of goods and services, sales volumes are invariably affected as distributors’ margins generally price the products or services out of the market.
In addition to the problems involving Brazil’s mandatory laws applicable to agents, appointing an agent places the commercial risk on the final customer, which is seldom welcome by them. Furthermore, it leaves all problems of dealing with the bureaucracy to clear customs (in the case of goods) or make foreign international payments and withhold the relevant taxes (in the case of services). Hence, appointing an agent is only suitable in very specific cases.
Are there any formalities required for the appointment of distributors? What if there is no formal contract with the distributor?
No. Distributors may be appointed even by an oral agreement (although proving its contents before a court can be complicated) but an appointment that is made informally or via an agreement that is signed by the parties in Brazilian territory and without an express clause choosing that a foreign law govern the agreement will mean that the Brazilian Civil Code will apply to the parties to the distributorship.
The Civil Code states that unless the parties agree otherwise the distributor is:
- responsible for all expenses relating to the distribution arrangement; and
- entitled to the remuneration relating to deals made within the distributor’s territory (even if the distributor did not bring about the deal).
The Civil Code also provides the rules relating to termination.
How are distribution agreements terminated under Brazilian law?
If Brazilian law governs the distribution agreement, then the Civil Code will apply to its termination.
The Civil Code provides the distributor is entitled to damages if the principal, without just cause, “stops supplying or reduces the supply so much that keeping the contract in place becomes commercially unviable”. The purpose of this provision is to protect distributors where suppliers force distributors to terminate the agreement by controlling the supply of goods or services.
If the distribution agreement is not for a fixed term, then the notice period must be reasonable considering the distributor’s efforts and the amounts invested by the distributor. This is often a complex assessment, as the Civil Code does not prescribe specific methods to calculate the distributor’s entitlements.
What if a foreign law governs the distribution agreement?
The Superior Court of Justice has consistently ruled in favour of allowing foreign laws to govern distribution relationships. However, that does not mean that all distributorship-related rules will be governed by the law chosen by the parties as there are Brazilian laws that cannot be excluded by contract.
For instance, where the Consumer Defence Code applies to the purchase, then the manufacturer, the supply and the distributor will be strictly liable where the product is faulty (and this also applies to the provision of services) and limitation of liability clauses will be ineffective.
What are the common pitfalls associated with appointing an agent in Brazil?
In addition to ignoring the effect of mandatory laws on distribution relationships, suppliers often:
- neglect to file for trademark protection in Brazil;
- do not make arrangements for registration of the “.br” internet domain name;
- do not obtain a due diligence report on the distributor and the distributor’s related parties; and
- fail to have a detailed agreement in place that is customised for Brazil’s legal environment.
Have you filed for registration of your trademark in Brazil?
Brazil follows the first to file trademark registration system and removing an existing trademark that was unduly registered by a third-party can be an expensive process. It is recommended that arrangements be made for registration of the trademark as soon as the decision to enter the Brazilian market is made. Click here for further information on trademarks.
Will you be liable for employment obligations of your distributor?
Courts can (and often do) find principals liable for employment-related obligations when a distributor’s employees can be regarded as an employee of the principal. This will occur if the distributor’s employees can prove that:
- there is direct interference of the principal in the activities of the distributor;
- the principal exerts control over termination of employment contracts of the distributor;
- the principal set sales goals directly to the distributor’s employees; and
- the principal (rather than the distributor) is the beneficiary of the services provided by the distributor’s employees.
The principal will be held liable if the distributor is unable to pay for the employees’ employment-related rights.
Have you obtained a due diligence report before appointing the distributor?
Unfortunately, too often foreign principals choose to appoint at face value – and this ends up being a costly mistake. Brazil is a highly litigious society, with strict tax rules that quickly penalise those companies that are not tax-compliant.
Before appointing any agent, principals should retain lawyers to prepare a due diligence report on the agent. This report should include the agent, the agent’s company, its directors and shareholders and include:
- a review of the corporate documents from the relevant Company Registries where the agent operates;
- obtaining the Federal State and Municipal tax, social security and employment litigation-related certificates where the company operates; and
- undertaking State and Federal court searches (including the Employment Court hierarchy) and analysing any specific cases of concern.
This basic due diligence process should be done in addition to an analysis on whether the agent would be ready, willing and able to meet its obligations under the distribution agreement from a financial and commercial point of view.
Do you have an agreement customised for the Brazilian legal environment?
Companies with agents around the world frequently have standard contracts that they use to appoint distributors in different jurisdictions. Due to Brazil’s particular rules relating to distributorships, it is important that standard agreements be reviewed by Brazilian lawyers before they are presented to the agent.
Relying on a choice of law and court provision will do little to avoid the mandatory nature of some Brazilian laws that will apply to the distribution relationship.
Thus, having a well-drafted agreement customised to the Brazilian legal environment and following its terms throughout the agency relationship will go a long way to minimise the exposure of the principal to undesired risks.
Contact me if you require further information.
Last modified: March 18, 2019