I first asked Peter for an explanation of his basis for concluding that agreements restricting the redistribution of CITES covered plants were unenforceable. Despite replies from Peter and Guido arguing that this conclusion follows from the lack of such a redistribution prohibition in CITES, I have heard nothing that would lead me, as a lawyer, to conclude the agreements were not enforceable. Others have expressed the view that these are commercially valid contracts.
I believe the question of the enforceability of such an agreement is a matter of the law to be applied by the court hearing a dispute regarding the agreement. More specifically, if legal action for breach of contract was instituted, the court would first be required to decide which jurisdiction's law applied to the dispute. After doing so, and in light of the applicable law, a decision would be made on the merits of the claim.. In the US, absolute restrictions on the transfer of property are generally not enforceable, but reasonable restrictions as to time and place frequently are. It certainly is not uncommon in commerce for there to be marketing and similar agreements that place reasonable limits on how and when property may be sold. (These are frequently referred to as distribution agreements.) If these agreements recite that that they are governed by the law of another country, it is likely that US courts would attempt to apply the other country's law unless to do so would violate some fundamental US legal policy. I was really hoping that someone would have been able to refer to a specific provision of CITES (which is binding law in the US) that prohibited redistribution restrictions, but no one has been able to produce that. I think anyone who has signed an agreement restricting redistribution for a limited period of time should be very cautious in disregarding these restrictions and should obtain advice from their own legal counsel on this question before doing so. Michael A. Corn _______________________________________________ the OrchidGuide Digest (OGD) [email protected] http://orchidguide.com/mailman/listinfo/orchids_orchidguide.com
