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Thought Leaders

Thought Leaders

Martine de Koning

Martine de Koning

Kennedy Van der LaanMolenwerf 16AmsterdamNetherlands1014 BG

Thought Leader

Thought Leaders Global Elite - Franchise 2021

Q&A

WWL Ranking: Global Elite Thought Leader

WWL says

Martine de Koning is described by sources as “an excellent lawyer, who knows a great deal about distribution-related competition law aspects”.

Questions & Answers

Martine is an expert in franchise, distribution and commercial agency. She combines in-depth knowledge of EU and competition law with a deep understanding of commerce and trade. She is praised for her “sharp strategic insight, knowledge and creativity in providing solutions” and handling litigation and arbitration in a “smart, assertive and effective” manner. She is a thought leader on e-commerce, omni-channel, internet platforms, licensing, data-sharing, pricing and fee structures, (e.g. RRP, fees, rebates, promotions, tying, dynamic pricing, royalties). She teaches on trade unions, Brexit, impact of covid-19, customs and trade controls.

Where did your interest in franchise law grow from?

I came to the legal profession with an IP and technology law background. For years, I handled IP and IT work for mostly Anglo-American clients and became an expert in channel issues and competition law complexities. One of my major clients started engaging in franchise and in the course of the development of this program I realised that in franchise, I could use all my favourite skills and knowledge. Handling transactions as well as disputes, often with a regulatory angle in competition, consumer and trade law really suits me. Over the years I built a team of eight lawyers active in this field. Often, we work in teams, based on which we can deliver excellent quality and service to our clients, and have fun along the way too.

How does your expertise in EU and Dutch competition law enhance your franchise practice? 

In the EMEA region, competition law defines the boundaries of how international franchise expansion can be structured. It determines what the parties can negotiate and how disputes will likely play out before the courts, arbitration institutes or government authorities. Topics that often come up are exclusive or selective distribution, exclusive supply, internet sales or third-party platform restrictions, resale price maintenance, non-compete clauses during and post-termination, active or passive sales restrictions on resale to particular geographic areas or customer groups, exclusive radius clauses, use of competition sensitive data in vertical and/or horizontal relationships, data-sharing, abuse of dominance, refusal to deal, tying, discriminatory pricing, etc. Clients appreciate the combined and integrated expertise we offer, which helps to resolve disputes and to draft contracts.

How has covid-19 affected your practice and the franchise industry more broadly? 

We have been early adapters with a focus on e-business, omnichannel and digital transformation and aim to be game changers in a post covid-19 world. We are practical, digitally savvy and well equipped to handle issues specific to the increased focus on D2C (direct to consumer), dual distribution, geo-blocking and the platform economy. The transition to online sales and services accelerated as a result of the covid-19 crisis and the related government measures (lockdowns) in Europe. We assisted clients in many covid-19 related questions and conflicts. This concerned event and product/services order cancellations, pre-bankruptcy and debt collection, enforcement of retention of title, acceleration of digital sales and services, immediate redesign of supply chain, logistics and warehousing infrastructure, import/export, customs, trade sanctions and compliance issues.

How are you anticipating Brexit will affect franchisors, and how might these changes be navigated?

Brexit will continue to influence trade in Europe. The impact of Brexit on international franchise expansion is sizeable and dragged out over a long period of time. It affects the speed of decision making and adaptation to market circumstances. Expanding in a regulatory setting that is unclear on many points, is challenging. Brexit should be seen in a wider context of political instability, trade wars, nationalism and anti-globalisation trends, that have an impact on the franchise market. Trade controls and sanctions, customs tariff issues affect cross-border trade and can determine the success or failure of international franchise expansion. We help clients to respond to market trends and to prepare for what lies ahead of us. We handle Brexit contingency projects, review and revise agreements to ensure these are flexible enough to respond to changes, both regulatory and commercial, brought by Brexit and anti-globalisation. 

In the current climate, what challenges and opportunities are being presented to the fashion and retail sector? 

Post-covid-19 stock and logistics issues will first need to be resolved. The market has fundamentally changed. The ‘need to go green’ will become more pressing. The emphasis is on building a sustainable, green and socially responsible supply chain, that can sustain a temporary closing of borders. In the past decades, companies focused on cost efficiency. Inventory levels were reduced without keeping buffer stock. Manufacturing was moved to countries where labour is cheaper. This now presents a risk. There is also pressure to produce locally and in a more sustainable and socially responsible manner and reduce environmental impact, which triggers a need for certification, quality control and puts the spotlight on product compliance and labelling of products. Product compliance and enforcement by authorities will increase as a result.

Some businesses are facing financially difficult times. Sales dropped abruptly, supply interrupted and in some industries an overflow of stock had to be dealt with. International expansion slowed down, and planned takeovers became uncertain. After an initial dip, e-commerce quickly accelerated and became of crucial importance to survival. Parties who did not make this a number-one priority in the past years, now have to scale up and innovate or lose their competitive advantage. Other parties, such as DIY stores, garden centres, food delivery, internet platforms on the other hand are flourishing. The (commercial) real estate industry has changed too: fewer physical stores, fewer and/or smaller office buildings. Rents for commercial retail properties have temporarily been reduced or frozen from increases. 

Where, in your opinion, does the future of the practice area lie?

We have seen new work following the further development of the EU and Dutch regulatory framework in relation to the digital economy, including internet platform regulation(s), geo-blocking and the reform of (EU) consumer- and competition laws such as the Block Exemption for vertical agreements (VBER). As the Franchise Act is applicable to all agreements with franchisees established in the Netherlands, regardless of the law applicable to the agreement, we see an increase in work for both Dutch and internationally operating franchisors. We expect complex negotiations between franchisors and franchisees and franchisee associations. 

What key skills and traits would you encourage in the next generation of franchise lawyers?

Knowledge of not just the legal themes, but of the industry and the business of the client. A good lawyer thinks ahead and provides solutions to the problems he identifies. People skills are key, proficient language skills are helpful and make sure to always respect the different ways in which things operate in other countries.

What is the best piece of advice you’ve ever received?

To move ahead, both professionally and personally, you need to leave your comfort zone every now and then. Keep challenging yourself and seek interaction with peers to keep a fresh eye on the issues you are dealing with.  

Global Leader

Franchise 2020

Professional Biography

WWL Ranking: Global Elite Thought Leader

WWL says

Martine de Koning is described by sources as “an excellent lawyer, who knows a great deal about distribution-related competition law aspects”.

Biography

Martine is an expert in franchise, distribution and agency transactions and litigation. She combines in-depth knowledge of EU and competition law with a deep understanding of commerce and trade. She is praised for her “sharp strategic insight, knowledge and creativity in providing solutions”. She handles litigation and arbitration in a “smart, assertive and effective” manner.

Martine structures complex international cooperation, such as the setting-up of franchise networks and channel agreements. She represents domestic franchisors in their international expansion plans and also assists foreign clients with establishing a presence in Europe, the Middle East and Africa. Martine is a “shrewd contract drafter and negotiator”. Martine’s interests include trade unions and treaties (EU, WTO, ASEAN, APEC, NAFTA, Caricom), customs and exports regulations, and sanctions. She also has a special interested in the impact of Brexit on commercial agreements.

Martine is a thought leader on pricing matters such as rebates, tying, excessive pricing, dynamic pricing, royalties, and licence and franchise fees for dominant and other parties. With her life-long focus on the fashion and retail sector she acts for her clients on internet sales restrictions; third-party platform restrictions; geoblocking; omnichannels (seamless marketplace); e-commerce; inventory sharing; dual distribution; horizontal and vertical data sharing; licensing of know-how and technology; loyalty programmes; and big data.

Hospitality 2020

Professional Biography

WWL Ranking: Recommended

WWL says

Martine de Koning is held in high esteem for her impressive counsel to clients in the hospitality sector, and her in-depth insights in the European competition legal framework.

Biography

Martine is an expert in franchise, distribution and agency transactions and litigation. She combines in-depth knowledge of EU and competition law with a deep understanding of commerce and trade. She is praised for her “sharp strategic insight, knowledge and creativity in providing solutions”. She handles litigation and arbitration in a “smart, assertive and effective” manner.

Martine structures complex international cooperation, such as the setting-up of franchise networks and channel agreements. She represents domestic franchisors in their international expansion plans and also assists foreign clients with establishing a presence in Europe, the Middle East and Africa. Martine is a “shrewd contract drafter and negotiator”. Martine’s interests include trade unions and treaties (EU, WTO, ASEAN, APEC, NAFTA, Caricom), customs and exports regulations, and sanctions. She also has a special interested in the impact of Brexit on commercial agreements.

Martine is a thought leader on pricing matters such as rebates, tying, excessive pricing, dynamic pricing, royalties, and licence and franchise fees for dominant and other parties. With her life-long focus on the fashion and retail sector she acts for her clients on internet sales restrictions; third-party platform restrictions; geoblocking; omnichannels (seamless marketplace); e-commerce; inventory sharing; dual distribution; horizontal and vertical data sharing; licensing of know-how and technology; loyalty programmes; and big data.

Features by Martine de Koning

Franchise 2018: Discussion

Franchise 2018: Discussion

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