国际贸易中代理合同(ICC).doc

MODEL FORM OF AGENCY CONTRACT FOR INTERNATIONAL TRADE

1. A uniform model form for international trade
When negotiating agency agreements abroad, one of the main difficulties which parties engaged in international trade are faced with is the lack of uniform rules for agreements of this type. Since there is no internationally agreed uniform legislation on the subject (unlike for example in the case of the international sales contracts), parties must rely on national laws on agency which: (i) do not take into account the specific needs of international trade (since they have been enacted in primis for the domestic agreements, and (ii) substantially differ from one country to another.

In particular the Hague Conventions of 1964 and, more recently, the Vienna Convention on the International Sales of Goods of 1980. There is now, to a certain extent, a tendency towards harmonization of national laws, at least within the EEC, in particular on the basis of EEC Directive n°86/653 of 18 December 1986. However, such harmonization is slow and covers only certain aspects of the contract; whilst it is certainly useful in order to create common ground for the basic principles of agencies, it is insufficient to grant legal security in international transactions.

Moreover, the directive provides for alternative solutions and leaves Member States free to maintain (or possibly adopt in the future) provisions which derogate to the directive in favor of the agent. Under these conditions the ICC believes there is a need for uniform contractual rules, which are, not based on any specific national law, but which incorporate the prevailing practice in international trade as well as the principles generally recognized by the domestic laws on agency. In preparing this model form, the working group has tried to find fair and balanced solutions to the main problems arising from an agency relationship, in accordance with prevailing legislative standards (and in particular those indicated in the EEC directive). However, since it is impossible to make uniform rules and, at the same time, to respect every rule of the various national laws (which moreover may contradict themselves), the model form may contain some clauses which are not in accordance with specific mandatory provisions of a particular legal system. However, since it is in line with the basic principles of domestic agency laws, the risk of conflict with national public provisions (and in particular with domestic rules which would remain applicable whatever the law applicable to the contract) should be almost non-existent; in any event, in order to cover exceptional situations of this kind, it is expressly stated that, if a conflict with rules of the country of the agent a rises, the latter provisions should in any case be considered by the arbitrators, if their application appears reasonable in the context of international trade (art. 23.3).

2. Provisions on indemnity.
There are provisions in a certain number of countries which grant the agent an indemnity if the contract expires or is terminated for reasons other than a default attributable to the agent. Such "indemnity" may be construed as a compensation for goodwill created by the agent and which accrues to the principal after the end of the contract, or as a compensation for the loss suffered by the agent (e.g. the commissions he would have earned had the contract lasted for a longer period or the investments he would have amortized if the contract had not been terminated) as a consequence of the expiration or termination of the contract. This idea characterizes e.g. German, Swiss and Dutch law. Under the French system: see notably article 3 of the Decree of 23 December 1958 "lagent commercial a drot a la reparation du prejudice oue lui cause la cessation de ses relations avec le commettant" These two solutions have been incorporated (as alternatives) in article 17.2 and 17.3 of the EEC Directive. In fact they have the same purpose, i.e. to compensate the agent for the loss of goodwill when the contract is terminated without his fault: we will hereafter refer to the above indemnity or compensation as "goodwill indemnity". On the other side, there are many countries where no right to a goodwill indemnity is granted to the agent.

This does not exclude of course that the agent may be entitled to compensation for damages suffered as a consequence of a contract termination which amounts to a breach of the contract by the principal. Under these conditions it appears appropriate to give the parties the opportunity to choose if they wish to include or not the indemnity provision in their contract. For this purpose, article 21 provides two alternatives (A and B) in order to cover the different situations. It is strongly recommended to choose alternative A whenever the right to indemnity is recognized by the law of the agent's country; in particular, as concerns EEC countries, alternative A of article 21 would conflict with mandatory rules of the legislation of the agent's place of business. Furthermore, in cases where no such legislation exists, it may be fair to grant the indemnity, particularly if this conforms with international trading practice in that particular business and/or area. As concerns the system of indemnification, the model form has incorporated the principles contained in article 17.2 of the EEC directive, i.e. the "German" system, which appears to be prevailing in the countries which recognize the indemnity. 6 This means that the indemnity system of the model form is not in strict compliance with the laws of the countries (like France) which follow the alternative solution set forth in article 17.3 of the EEC directive. However, since the substance of the agent's rights is recognized, this should not give rise to particular problems.

3. Recourse to international arbitration
Since the model form is a set of uniform contractual rules, avoiding (as far as possible) the direct application of conflicting domestic legislation, it is appropriate that possible disputes be solved by a uniform resolution system, organized on an international level. From this point of view the best solution appears to be international commercial arbitration (see particularly art. 23), which permits a truly international approach and avoids the risk of differentiation which would arise in case of recourse to domestic courts. Since arbitration is essential in the framework of this model, this ICC model contract should not be used in cases where the dispute may be considered as non-arbitrable (i.e. "capable of settlement by arbitration") according to the New York Convention of 1958. The above risk exists in particular under national laws which assimilate agents to employees (see hereunder, §4.2.), whenever this implies a special jurisdiction for disputes of this type. In these situations it is normally recommended to contract with agents who are legal persons (see hereafter, §4.2.) E.g. for the V.R.P. (France) and the Representants de commerce (Belgium) or for agents acting mainly with personal resources (Italy). In all these cases the national law provides an exclusive jurisdiction (specialized in labor disputes) which cannot be excluded by an arbitration clause.

4. Scope of application
This model form has been prepared on the assumption that it would apply only to international agency agreements, with self-employed commercial agents, acting for the sale of goods.

4.1. International agreements
In this respect it is undisputable that international agency agreements should be governed by special rules in order to take into account the special situation which exists in an agency agreement between parties of two different countries. Since the present model form has been established especially for these situations, it will, in principle, not be appropriate for domestic contracts, i.e. contracts between parties having their place of business in the same country. The parties are therefore advised not to use this model form for domestic contracts, unless they check which amendments are necessary in order to comply with a local situation.

4.2. Contracts with employed agents
In several countries special rules govern contracts with agents qualified as employees, or more generally with agents assimilated to the status of employees. E.g. in France, with regard to VRP (Voyageurs, representants placiers), and in Belgium for "representants de commerce". The above rules establish a presumption that the agent is an employee: thus, even if the contract clearly states that the agent is independent, he will in principle be considered to be an employee. In the Netherlands, labor law may apply to the so-called Einfirmenvertreter, i.e. agents which represent only one principal. E.g. in Italy the special procedural rules (which exclude inter alia recourse to arbitration) which govern employment contracts also apply to agency contracts, in all cases where the agent has no important organization of his own, but is acting mainly with his own family and personal resources.

In countries of the above type there is a risk that the agent may be qualified (independently of the definition given in the contract) as an employee and that consequently the rules applicable to employed agents (which will in many cases conflict with the provisions of this model form) will apply. A simple way to avoid such problems, particularly in the context of this model form, could be to contract with agents who are legal persons (e.g. companies): this solution is especially recommended when the agent is established in a country where a wide notion of employed agents (or agents assimilated to employed agents) is accepted by the law or jurisprudence. Since it is normally admitted that a legal entity cannot, by definition, be considered as an employee.

4.3. Buying agents
This model is meant for agents who represent a seller of goods, without taking into account so-called "buying agents" (i.e. agents who promote the purchase of goods, acting for the buyer).

4.4. "Service" agents
The model form has only taken into account the most common case of agents selling goods, without considering agents concerned with the promotion of services.

4.5. Consignment of the goods
It happens frequently that the principal wishes to appoint the agent as consignee of a stock of goods (or spare parts) placed in the agent's country. This involves however a number of special problems which should be dealt with in a separate contract. Consequently the problems of consignment of goods have not been considered in this model form.

5. Precautions for use of the model form
Any model contract should, to the extent possible, be adapted to the circumstances of a specific case. Of course, in theory the best solution consists in drafting an individual contract based on existing model forms in order to take account of all the specific requirements of the parties. However, the parties are often not in a position to prepare a specific contract and prefer to have recourse to a ready-to-use balanced model form: in this case they will ask for a model which can be used as it stands, without any need to make modifications or additions. The present model is an attempt to achieve a balance between these two possibilities. The ICC has tried to work out a single solution on every issue. However, where this has not been possible (see e.g. articles 8 and 18 and 21), alternatives have been suggested. Such alternative solutions have been presented side-by-side under the letters A and B, in order to point out that only one of them can apply. Therefore, before signing the contract, the parties must decide which of the alternative solutions they choose, and then cancel the alternative they do not want to apply. In any event, the model form provides that, if the parties do not make a choice by canceling one alternative, one of them will automatically apply according to article 24.1. and 24.2. of the model form.) There are also a number of points where the parties must fill in their requirements: definition of the territory and the products, amount of commission, etc. All such points have been put in the annexes to this document, so that the parties can fill in and (where necessary) modify such annexes during the life of the contract, without making changes to the basic text of the contract. Before signing the contract the parties should (and must as far as Annex VI is concerned) fill in the Annexes and, if appropriate, delete the parts they do not need. In order to avoid misunderstandings the parties should, when signing the contract, put their initials on each page, in order to make sure which amendments they have agreed upon or which alternative solutions they have chosen. The Annexes have been construed throughout so that (except for Annex VI regarding commission) even when the parties do not fill in some points, a solution can be found within the contract.
MODEL FORM OF INTERNATIONAL AGENCY CONTRACT
(ICC COMMERCIAL AGENCY CONTRACT)

Between________________________________________________________________
whose registered office is at______________________(hereinafter called "the Principal")
and___________________________________________________________________
whose registered office at__________________________(hereinafter called "the Agent")

IT IS AGREED AS FOLLOWS

Art. 1 Territory and Products
1.1. The Principal appoints the Agent, who accepts, as his commercial agent to promote the sale of the products listed in Annex 1, §1 (hereinafter called "the Products") in the territory defined in Annex 1, §2 (hereinafter called "the Territory").
1.2. If the Principal decides to sell any other products in the Territory, he shall inform the Agent in order to discuss the possibility of including them within the Products defined under article 1.1. However, the above obligation to inform the Agent does not apply if, in consideration of the characteristics of the new products and the specialization of the Agent, it is unreasonable to expect that such products may be represented by the Agent (e.g. products of a completely different range).

Art. 2 Good faith and fair dealing
2.1. In carrying out their obligations under this agreement the parties will act in accordance with good faith and fair dealing.
2.2. The provisions of this agreement, as well as any statements made by the parties in connection with this agency relationship, shall be interpreted in good faith.

Art. 3 Agent's functions
3.1. The Agent agrees to use his best endeavours to promote the sale of the Products in the Territory in accordance with the Principal's reasonable instructions and shall protect the Principal's interests with the diligence of a responsible businessman.
3.2. The Agent shall not solicit orders from outside the Territory unless permitted to do so by the Principal. Where th