国际贸易中代理合同(ICC).doc
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1、MODEL FORM OF AGENCY CONTRACT FOR INTERNATIONAL TRADE1. A uniform model form for international tradeWhen 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 ther
2、e 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
3、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 l
4、aws, at least within the EEC, in particular on the basis of EEC Directive n86/653 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 insuf
5、ficient 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 belie
6、ves 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 ha
7、s 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
8、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
9、 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 co
10、nflict 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 countri
11、es 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 com
12、pensation 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 charact
13、erizes 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)
14、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 a
15、re 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 con
16、ditions 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 alt
17、ernative A whenever the right to indemnity is recognized by the law of the agents country; in particular, as concerns EEC countries, alternative A of article 21 would conflict with mandatory rules of the legislation of the agents place of business. Furthermore, in cases where no such legislation exi
18、sts, 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 Ge
19、rman 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 dir
20、ective. However, since the substance of the agents 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
21、 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
22、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 arb
23、itration) 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 contra
24、ct 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) whic
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- 国际贸易 代理 合同 ICC
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