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 “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 pricing, fee structures, licensing and data sharing (eg, rebates, tying, dynamic pricing, royalties). She teaches on trade unions, Brexit, customs and trade controls.
What inspired you to pursue a legal career?
My mother was a lawyer, handling employment and family disputes. I was inspired by her stories and work ethic.
How has the market changed since you first started practising?
Everything is digital now, the retail landscape in Europe and globally has changed due to the financial crises and e-commerce. This resulted in truly different markets and it also triggered a consolidation of retail enterprises. While some franchisors, manufacturers and retailers unfortunately did not survive, it was a very interesting and at times challenging period for the legal profession, since the legal work changed too. Everything is “here and now” in today’s marketplace.
What do clients look for in an effective franchise lawyer?
Knowledge of not just the legal themes, but also the industry and the business of the client. A good lawyer thinks ahead and provides solutions to the problems he or she identifies.
Which industries are currently the busiest in your practice? Why do you think this is?
Fashion and luxury goods have always been an important part of my practice. In the past few years a range of competition law cases concerning e-commerce, internet (platform) sales restrictions and selective distribution, both before authorities and courts, have been a driver and shaped the future of high-end brands in the industry. Also, hospitality, leisure and hotel property management have been strong as a result of fast-growing tourism around the world. In the past few years, anti-globalisation trends and trade controls have put customs, transportation, logistics and warehousing in the spotlight.
How is e-commerce reshaping the landscape of the high street?
This varies. Globally, there are still markets where the effect is limited, but in Europe it is very visible in smaller cities – there are vacant retail premises – and in larger cities, prime real estate is now focused on flagship stores that support online sales and brand position. In addition, the services industry is omnipresent, such as wellness and beauty salons, fitness chains, restaurants, hotels, coffee shops and luxury bakeries, juice bars, cocktail venues, museums, souvenir shops, concept stores, pop-up stores.
Your practice is very international and involves working with large franchise systems and colleagues across the globe. What skills are needed in order to work effectively across such large networks?
People skills are key; proficient language skills are helpful; and make sure to always respect the different ways in which things operate in another country than your own.
In 2018, a Dutch draft bill on franchising was published. How do you expect the new bill to affect your practice over the next couple of years?
The draft bill that sets forth rules for franchise agreements is only published in a preliminary form. It is our understanding that, after the public consultation was held in January 2019, the Ministry amended the draft bill before sending it to the Council of State for advice. The Council of State shall advise the Ministry on the proposed draft bill. State secretary Mona Keijzer indicated that she aims to submit the draft bill to the Parliament, House of Representatives, before the end of 2019. Until then, the amended draft bill will not be published. It is therefore difficult to anticipate whether the new draft bill will be adopted and, if so, whether substantial amendments are likely. Given that the draft bill includes not only precontractual disclosure obligations but also various aspects of the relationship, including termination, it is likely that the draft bill will not reduce but increase the amount of disputes and thus legal work. This is unfortunate because the draft bill, among other things such as strengthening the legal position of the franchisee, was introduced to reduce the unrest and disputes in the market.
What has been your greatest achievement to date?
I set up the customised alliance model, which is collaborative innovation and partnership. It is a tailor-made, one-stop-shop alliance of independent law firms, managed by us. It offers multinationals the advantage of globally consistent, high-quality services and standardised working procedures without losing the flexibility and freedom to cherry-pick and source outstanding local expertise that best fits the needs in a particular jurisdiction. The law firms selected thus vary per client and can be changed and expanded along the way. It also allows the appointment of multiple law firms in a jurisdiction. The customised alliance model was developed in 2012 and it has been launched and successfully implemented for over six years now, with numerous clients. Operating within the alliance model, I worked a large cross-border EU competition case with several other law firms as a seamless virtual team, offering integrated budgets, central invoicing and we thoroughly enjoyed this way of partnering with the client and other law firms.
Martine de Koning is a "very active" franchise lawyer with "exceptional legal knowledge". She has extensive experience of structuring complex matters including joint ventures.
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.