Colombian industry seemed to mate- rialize when the Antioquia´s Superior Tribunal condemned Icopinturas S.A. to pay to a distributor the "Cesantía Comercial,"considering that the latter had contributed to open new markets for the products of the former. This sentence was revoked later by the Supreme Court of Justice who considered that the agent was buying the goods for himself with the intention of reselling them and thus, he was promoting his own business. This doctrine was ratified by the Supreme Court of Justice in the Cacharrería Mun- dial vs. Jorge Ivan Merisalde case, which became a leading case for a line of prec- edents that was ratified in the Distrimora Ltda. vs. Shell case of 1995 and later on, in the sentences enacted by the Bogota, Boyacá and Tolima's Superiors Tribunals as a result of the lawsuits promoted by several distributors The "Icopinturas" case caused a huge uproar in the national Doctrine, which considered that the Supreme Court Justice was protecting the interest of the Colombian Industry and their theory was oriented to forbid the application of the Commercial Agency Contract. As detractors of the "Icopinturas" case, Professors Jaime Arrubla Paucar and William Namén Vargas sustained that the existence of a Distribution Contract and buying for reselling did not exclude the existence of a Commercial Agency Contract considering that the agent was responsible for publicity and could only sell in the designated territory and within the prices fixed by the principals. In 2010, both professors found themselves as members of the Supreme Court of Justice and by 2011, they were faced with a new case of Commercial Agency Contract. In October 19, 2011, the Supreme Court of Justice changed the precedent line that came from 1980 and condemned Hewlett Packard to pay his distributor the "Cesantía Comercial" considering that the Commercial Agency Contract could co-exist with a Distribu- tion Contract. Contract and the U.S. Colombia Trade Promotion Agreement and United States of America governments finished negotiations of the terms for the Trade Promotion Agreement (TPA) between both countries. One of the commitments acquired by the Colombian Government was to promote before the Congress, the modification of the Commerce Code regarding the Commercial Agency Contract. The current regulation of the Commercial Agency Contract is considered an obstacle for the American goods producers due to the fact that the commercial relationships they should establish to distribute their products within the Colombian territory, could be declared as Commercial Agency Contracts, granting the distributors the rights of an agent upon the termination of the contract. In order to prevent the Commercial Agency Contract to be a barrier for the implementation of the TPA, the Colombian Government committed to reform the aforementioned contract: Commercial" that was mandatory and could not be excluded by pact between the parties. exclusivity of territory in order to allow the existence of several distributors (Article 1318 CCO). calculate the compensation owed to the agent whenever the contract is terminated without cause. Contract for Goods of Representatives, in Plenary Session, approved the Bill Number 146 of 2012, which creates the Commercial Agency Contract for Goods. following scope, characteristics and contributions: (i) Restricts its application solely to the and distribution of goods and software. types of commercial activities that don't involve goods or software. of the CCO. However, the other CCO's norms continue to be fully applicable. the contract, transferring this kind of responsibility to the General Rules, which are less onerous for the principal. and performed under the CCO's regulations. and clarify that the Bill needs to pass the next two debates in the Colombian Senate to become an Act; however, we consider its approval in its current version very probable. 2 Zuluaga y Soto S.A., Distrisagi Ltda. and Sierra Pineda yet approved the final text of the Bill Number 146 of 2012. |