There is often an argument between parties on termination of an agency agreement in respect of the amount of compensation or indemnity owed by a principal to an agent. Unfortunately for principals, a decision of the European Court in October 2013 has created further uncertainty for those who enter into cross-border agency agreements in the EU.
The Unamar case involved a Belgian agent acting for a Bulgarian principal. The agency agreement was stated to be governed by Bulgarian law. Despite this, on termination the agent sought a goodwill indemnity and compensation under Belgian law on the basis that it had implemented the European Agents Directive but granted commercial agents additional protection. The agent argued that the provisions relating to compensation that granted additional protection were mandatory rules of Belgian national law and could not be overridden.
The Belgian Court referred certain questions to the European Court, which decided that it is for each national court to question whether:
It follows that a principal may find itself faced with a claim from a terminated agent brought under the laws of the territory in which the agent acted, irrespective of there being a clause in the agreement to the contrary. In this situation, if the answer to each of the above is “yes”, the principal may not be protected by what it thought was the certainty of expressly providing in the agency agreement for the law which is to govern the agreement.
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