Tunisia

Foreign investors who want to take full advantage of the many opportunities offered by the Tunisian market can do so through the conclusion of agency contracts with natural persons of Tunisian nationality or with companies established under Tunisian law.

Once the agency contract is concluded in writing, è it is necessary to file, with the central administration of the Ministry of Commerce, a declaration conforming to the investment project, signed by the’agent or sales representative.

Except in rare exceptions, è the conclusion of agency contracts on an exclusive basis is prohibited to ensure that the rules of competition are not undermined. As for the choice of applicable law, this è left to the freedom of the parties.

Therefore, the foreign investor, if he wants to conclude agency contracts, should keep in mind that the Tunisian Commercial Code does not provide for the agent any severance indemnity in case of termination of the contract, unless otherwise agreed, while it provides for an indemnity of a compensatory nature only in case of early termination of the contract for reasons not attributable to him.

Although the distribution contract is not a strong point of the Tunisian economy, which is mainly focused on retail, the Tunisian government has, for some years, been encouraging the creation of nationwide distribution networks to cope with the opening of the market and competition from foreign products.

This being said, no specific permits are required in Tunisia, except for sectors concerning alcoholic beverages, elevators, real estate agents, advertisingà. Exclusive contracts are prohibited in this area as well, and the requirement to obtain a license from the relevant authorities remains.

These are also prohibited.

&It is good to keep in mind that if the foreign investor wants to conclude distribution contracts in the Tunisian territory, he/she will have to give notice of commencement of activity to the Ministry of Commerce within one month of its commencement. In addition, if the distribution takes place by telematic or electronic means, the foreign investor will have to enclose with the communication the contract concluded for the use of the Internet site.

In particular, among other things, Law 99-41 defines the obligation on the trader to provide product warranty or after-sales service and regulates the transparency of competition through the regulation of direct producer-consumer sales to prevent the former from competing with its distributors. In practice è it gives the manufacturer the option of also acting as a distributor as long as it complies with the rules of fair competition.

At any rate, there is a list of sectors in which retailing must necessarily be distinguished from wholesaling. These include the following: fruit and vegetables, fish and food products, consumer beverages, textiles, footwear, electrical equipment, books, hardware, computer equipment.

Taking into account the fact that, in some countries – including the member countries of the European Union - , the law and jurisprudence impose on the principal house the obligation to pay the distributor, in the same way as a commercial agent, an’indemnity for creation of goodwill in case of dissolution of the relationship, in the event that the foreign entrepreneur signs a distribution contract with a person of Tunisian nationality converrà carefully consider the’advisabilityà of subjecting the relationship to the law of Tunisia.

Franchising è a relatively recent contract in Tunisia, for which the Tunisian government envisages d’encouragement measures, as witnessed by the growing popularity of franchising, a formula already developed for food and textile products.

In 2009, the Tunisian government passed Law No. 69 regulating the franchise contract, which was amended in June 2010 to establish a series of provisions governing information obligations.

In particular, Art. 14 of Law No. 69/2009 defines franchising as “the contract through which the owner of the trademark grants the right to use the trademark to a natural person or legal entity called a franchisee for the purpose of distributing products or providing services in exchange for a fee”. Also included in the grant è is the transfer of knowledge and experience by the franchisor, as well as rights to intellectual property.

First, an obligation arises on the franchisor to inform the franchisee at least 20 days before entering into the agreement.

In particular, such information concerns:

• The franchisor’s business network and its nature, as well as the opportunities’in the sector in the Tunisian territory;
• The’identityà of the franchisor's legal representatives, locations and internal structure;
• The proof of the ownershipà of the trademark in the head of the franchisor;
• The list of franchisees and information related to the franchise network in the Tunisian territory;
•  The nature and burden of the costs required for the start-up and operation of the business;
• The financial balance sheet of the franchisor

The rights and obligations incumbent on the franchisor are

• The provision of services, including the transfer of know-how, technical expertise and intellectual property rights;
• The possibility of access under certain conditions, including for its representatives, to the franchisee's premises;

In contrast, in the head of the franchisee are provided:

• An exclusive supply agreement;
• The establishment of an investment plan;
• The obligation of constant reporting to the franchisor on sales and financial situation;
• The possibility of establishing sub-franchise agreements with third parties in the geographical area entrusted to him, when the franchise agreement covers the entire Tunisian territory;
• The payments required.

In addition, the agreement must govern the exclusive use of the brand name in the identified geographical area, non-competition obligations, the term of the contract and any conditions for renewal, the specification of confidential information and the division of advertising expenses;

Article 564 of the Tunisian Civil Code defines sale and purchase as “the contract under which one of the parties conveys the ownershipà of a thing, or a right, to’the other contracting party, for the consideration of a price which the latter undertakes to pay”.

Tunisia has not ratified the 1980 Vienna Convention on Contracts for the International Sale of Goods (CISG). Consequently, identifying the law applicable to the relationship may not be an easy task when the buyer has defaulted.

For example, the Moroccan Civil Code does not expressly provide for the possibility for the seller to reserve ownership of the property sold until the price is paid in full. This means, therefore, that any clauses containing such a provision might not be fully accepted by Moroccan judicial authorities if the contract turns out to be governed by Moroccan law.

Moroccan law.

In any case, the seller only provides warranty for defects present at the time of the conclusion of the contract or delivery.

In contrast, Tunisian law fully recognizes Incoterms terms, to which, therefore, one may legitimately refer when concluding a contract of sale and purchase with a Tunisian interlocutor. Otherwise, the regulation of the sale does not deviate from internationally recognized customs and practice.

Tunisia has always shown a strong interest in the simplification of legislation related to trade and investment. It has made this an essential element of its economic policy, through the implementation of an Export Development Program.

The aforementioned program has seen the strengthening of technical control and risk management procedures, the simplification and modernization of customs procedures, the streamlining of the administrative process, as well as the development of facilitation in the transport and logistics sector.

This program è was implemented by the Tunisian government in cooperation with the World Bank and makes Tunisia an extremely fertile ground for investment. Today, Tunisia è linked by trade agreements with more than 50 countries in the African free trade region, both bilaterally, regionally and multilaterally. Thus, once a good is imported within the Tunisian country, it will be possible to re-import it within many African states, without the need to pay duty. In addition, Tunisia entered into an agreement with the European Union in 1995, followed by a series of subsequent arrangements, which led to the creation of a vast free trade zone with the old continent as well. Prerequisite è the certificate attesting to the product’s origin in one of the EU countries.

On Jan. 1, 2008, Tunisia è fully entered the free trade zone for industrial products, while negotiations for the liberalization of the agricultural and services sectors are currently underway. This agreement has certainly had a positive impact on the country’s economy and has stimulated an increase in business competitiveness and an acceleration in trade.

È however, there is a list of products that are not exempt from tariffs: yogurt, pasta, cookies, mineral water, carpets, hand-woven fabrics. Finally, è it is necessary to acquire an import license for all those products for which Tunisia can boast of its own production.

The foreign entrepreneur wishing to invest in Tunisia will first have to make sure that he or she has taken steps to register his or her trademark in the target country, so that he or she can fully enjoy the tools recognized by the Tunisian legal system to protect intellectual property.

Therefore, Tunisia è is a party to the Madrid Agreement and its protocol on the international registration of trademarks and, consequently, the registration (or the’extension of one’s trademark) in Tunisian territory will take place according to the usual internationally codified rules.

The period of validity of a trademark è of 10 years, starting from the date of application, renewable for similar periods. A not insignificant expedient, once you have defined the trademark you want to register, è to check its novelty, by searching for trademarks that are identical or too similar to those already registered in Tunisia, and transliterate it into Arabic. In fact, terms that seem to have their own appeal in one's own language could, on the contrary, be cacophonous or have totally different meanings when translated into Arabic.

In any case, it is advisable to protect one’s trademark by registering the appropriate domain name with the ’extension “.tn”.