(List of articles in English and French relating to various legal issues)
Jonathon
Wise Polier
Member of the Bars of New York State and Paris (France)
4 rue de Marignan
75008 Paris
Telephone: (33) 1 47 23 41 51
Fax: (33) 1 47 23 37 93
E-Mail: j-polier@paris-law.com
http://www.paris-law.com
In France, pursuant to Law No. 91-593 of 25 June 1991, and in probably most of the other countries forming the European Economic Union (including the UK and Germany), there are national laws which protect a commercial agent in the event that its principal terminates the "commercial agency" relationship. (One of the reasons why such laws exist so widely in Europe is the fact that there is an EEC Directive No. 86/653 from 1986 which directs the national governments of the member countries to enact such legislation.)
The relevant provision of French Law No. 91-593 reads as follows:
In France, this provision is one of "public policy" ("ordre public") and it may not easily be abrogated by contract.
The law in question does provide a number of exceptions to the above compensation rule, including the following:
In application of such statute, French case law often sets the indemnity at an amount approximately equal to two times the annual commissions earned by the agent.
In addition, the French case law has extended the indemnity right of "commercial agents" to certain "distributors" when the two parties are deemed to share a common economic interest ("intérêt commun"), a somewhat nebulous concept about which the case law will continue to evolve. This extension of the application of the statute to certain distributor agreements is effected by judicial "réqualification" of the contract.
Where a principal simply sells merchandise to the distributor and exercises no real control over the conduct of the distributor, the relationship may well fall outside the scope of that of a common economic interest. But, in the complex world of today, the work of the principal and the distributor often becomes more like a joint-venture and this close relationship can give rise to the above-mentioned right of indemnity.
In the United States, the parties bargain for a right of indemnity, but if an agent waives this right, an American court, applying the law of an American state, would not seek to change the economic deal negotiated, if both parties were American and the United States was the place of performance.
Certain American principals are aware of this European situation and have tried to circumvent the European indemnity provisions. Their American legal counsels have used both imagination and legal skill, but they have also, at times, made mistakes which rendered their contract provisions less effective than they might be otherwise.
| DISCLAIMER
The information provided here and on the other pages linked hereto is intended for educational purposes only, and is not legal advice. Particular situations require particular analyses that can only be provided by legal professionals who specialize in the relevant fields and who know all the details of a situation. Also, a presentation such as this does not establish the attorney-client relationship that is necessary in any rendering of legal advice. Finally, one should be aware that the law is a chameleon-like beast that changes its colors frequently, and what holds good today may be reversed by tomorrow. The comments herein should then be read in that light. |
NOTE AU LECTEUR
Les notes et documents que vous pouvez consulter sur ce site sont présentés dans un souci d'information et ne constituent nullement une consultation juridique. Chaque situation est particulière et requiert un examen spécifique qui ne peut être l'oeuvre que d'un professionnel du droit, spécialiste en la matière et au fait des différentes implications de la question. En outre, il faut avoir conscience que la législation, réglementation et jurisprudence changent en permanence. Ce que l'on tient pour acquis tel jour peut être révolu le lendemain. Ainsi, un exposé, aussi détaillé soit-il, ne remplace pas la relation étroite qui doit s'établir entre une entreprise et son avocat, relation indispensable à la fonction de conseil en matière juridique. |
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