CONVENTION ON THE LAW APPLICABLE TO AGENCY
(Concluded 14 March 1978
The States
signatories to the present Convention,
Desiring to
establish common provisions concerning the law applicable to agency,
Have resolved to
conclude a Convention to this effect, and have agreed upon the following
provisions -
chapter i -
scope of the convention
Article 1
The present
Convention determines the law applicable to relationships of an international
character arising where a person, the agent, has the authority to act, acts or
purports to act on behalf of another person, the principal, in dealing with a
third party.
It shall extend
to cases where the function of the agent is to receive and communicate
proposals or to conduct negotiations on behalf of other persons.
The Convention
shall apply whether the agent acts in his own name or in that of the principal
and whether he acts regularly or occasionally.
Article 2
This Convention
shall not apply to -
a) the
capacity of the parties;
b) requirements as to form;
c) agency by operation of law in
family law, in matrimonial property regimes, or in the law of succession;
d) agency by virtue of a decision
of a judicial or quasi-judicial authority or subject to the direct control of
such an authority;
e) representation in connection
with proceedings of a judicial character;
f) the agency of a shipmaster
acting in the exercise of his functions as such.
Article 3
For the purposes
of this Convention -
a) an
organ, officer or partner of a corporation, association, partnership or other
entity, whether or not possessing legal personality, shall not be regarded as
the agent of that entity in so far as, in the exercise of his functions as
such, he acts by virtue of an authority conferred by law or by the constitutive
documents of that entity;
b) a trustee shall not be regarded
as an agent of the trust, of the person who has created the trust, or of the
beneficiaries.
Article 4
The law
specified in this Convention shall apply whether or not it is the law of a
Contracting State.
chapter ii -
relations between principal and agent
Article 5
The internal law
chosen by the principal and the agent shall govern the agency relationship
between them.
This choice must
be express or must be such that it may be inferred with reasonable certainty
from the terms of the agreement between the parties and the circumstances of
the case.
Article 6
In so far as it
has not been chosen in accordance with Article 5, the applicable law shall be
the internal law of the State where, at the time of formation of the agency
relationship, the agent has his business establishment or, if he has none, his
habitual residence.
However, the
internal law of the State where the agent is primarily to act shall apply if
the principal has his business establishment or, if he has none, his habitual
residence in that State.
Where the
principal or the agent has more than one business establishment, this Article
refers to the establishment with which the agency relationship is most closely
connected.
Article 7
Where the
creation of the agency relationship is not the sole purpose of the agreement,
the law specified in Articles 5 and 6 shall apply only if -
a) the
creation of this relationship is the principal purpose of the agreement, or
b) the agency relationship is
severable.
Article 8
The law
applicable under Articles 5 and 6 shall govern the formation and validity of
the agency relationship, the obligations of the parties, the conditions of
performance, the consequences of non-performance, and the extinction of those
obligations.
This law shall
apply in particular to -
a) the
existence and extent of the authority of the agent, its modification or
termination, and the consequences of the fact that the agent has exceeded or
misused his authority;
b) the right of the agent to
appoint a substitute agent, a sub-agent or an additional agent;
c) the right of the agent to enter
into a contract on behalf of the principal where there is a potential conflict
of interest between himself and the principal;
d) non-competition clauses and del credere clauses;
e) clientele allowances (l'indemnité de clientèle);
f) the categories of damage for
which compensation may be recovered.
Article 9
Whatever law may
be applicable to the agency relationship, in regard to the manner of
performance the law of the place of performance shall be taken into
consideration.
Article 10
This Chapter
shall not apply where the agreement creating the agency relationship is a
contract of employment.
chapter iii -
relations with the third party
Article 11
As between the
principal and the third party, the existence and extent of the agent's
authority and the effects of the agent's exercise or purported exercise of his
authority shall be governed by the internal law of the State in which the agent
had his business establishment at the time of his relevant acts.
However, the
internal law of the State in which the agent has acted shall apply if -
a) the
principal has his business establishment or, if he has none, his habitual
residence in that State, and the agent has acted in the name of the principal;
or
b) the third party has his
business establishment or, if he has none, his habitual residence in that
State; or
c) the agent has acted at an
exchange or auction; or
d) the agent has no business
establishment.
Where a party
has more than one business establishment, this Article refers to the
establishment with which the relevant acts of the agent are most closely
connected.
Article 12
For the purposes
of Article 11, first paragraph, where an agent acting under a contract of
employment with his principal has no personal business establishment, he shall
be deemed to have his establishment at the business establishment of the
principal to which he is attached.
Article 13
For the purposes
of Article 11, second paragraph, where an agent in one State has communicated
with the third party in another, by message, telegram, telex, telephone, or
other similar means, the agent shall be deemed to have acted in that respect at
the place of his business establishment or, if he has none, of his habitual
residence.
Article 14
Notwithstanding
Article 11, where a written specification by the principal or by the third
party of the law applicable to questions falling within Article 11 has been
expressly accepted by the other party, the law so specified shall apply to such
questions.
Article 15
The law
applicable under this Chapter shall also govern the relationship between the
agent and the third party arising from the fact that the agent has acted in the
exercise of his authority, has exceeded his authority, or has acted without
authority.
chapter iv -
general provisions
Article 16
In the
application of this Convention, effect may be given to the mandatory rules of
any State with which the situation has a significant connection, if and in so
far as, under the law of that State, those rules must be applied whatever the
law specified by its choice of law rules.
Article 17
The application
of a law specified by this Convention may be refused only where such
application would be manifestly incompatible with public policy (ordre public).
Article 18
Any Contracting
State may, at the time of signature, ratification, acceptance, approval or
accession, reserve the right not to apply this Convention to -
(1) the
agency of a bank or group of banks in the course of banking transactions;
(2) agency in matters of insurance;
(3) the acts of a public servant acting in the exercise of his functions
as such on behalf of a private person.
No other
reservation shall be permitted.
Any Contracting
State may also, when notifying an extension of the Convention in accordance
with Article 25, make one or more of these reservations, with its effect
limited to all or some of the territories mentioned in the extension.
Any Contracting
State may at any time withdraw a reservation which it has made; the reservation
shall cease to have effect on the first day of the third calendar month after
notification of the withdrawal.
Article 19
Where a State
comprises several territorial units each of which has its own rules of law in
respect of agency, each territorial unit shall be considered as a State for the
purposes of identifying the law applicable under this Convention.
Article 20
A State within
which different territorial units have their own rules of law in respect of
agency shall not be bound to apply this Convention where a State with a unified
system of law would not be bound to apply the law of another State by virtue of
this Convention.
Article 21
If a Contracting
State has two or more territorial units which have their own rules of law in
respect of agency, it may, at the time of signature, ratification, acceptance,
approval or accession, declare that this Convention shall extend to all its
territorial units or to one or more of them, and may modify its declaration by
submitting another declaration at any time.
These
declarations shall be notified to the Ministry of Foreign Affairs of the
Kingdom of the Netherlands, and shall state expressly the territorial units to
which the Convention applies.
Article 22
The Convention
shall not affect any other international instrument containing provisions on
matters governed by this Convention to which a Contracting State is, or
becomes, a Party.
chapter v - final clauses
Article 23
The Convention
is open for signature by the States which were Members of the Hague Conference
on Private International Law at the time of its Thirteenth Session.
It shall be
ratified, accepted or approved and the instruments of ratification, acceptance
or approval shall be deposited with the Ministry of Foreign Affairs of the
Kingdom of the Netherlands.
Article 24
Any other State
may accede to the Convention.
The instrument
of accession shall be deposited with the Ministry of Foreign Affairs of the
Kingdom of the Netherlands.
Article 25
Any State may,
at the time of signature, ratification, acceptance, approval or accession,
declare that the Convention shall extend to all the territories for the
international relations of which it is responsible, or to one or more of them.
Such a declaration shall take effect at the time the Convention enters into
force for that State.
Such
declaration, as well as any subsequent extension, shall be notified to the
Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 26
The Convention
shall enter into force on the first day of the third calendar month after the
deposit of the third instrument of ratification, acceptance, approval or
accession referred to in Articles 23 and 24.
Thereafter the
Convention shall enter into force -
(1) for
each State ratifying, accepting, approving or acceding to it subsequently, on
the first day of the third calendar month after the deposit of its instrument
of ratification, acceptance, approval or accession;
(2) for a territory to which the Convention has been extended in
conformity with Articles 21 and 25, on the first day of the third calendar
month after the notification referred to in those Articles.
Article 27
The Convention
shall remain in force for five years from the date of its entry into force in
accordance with the first paragraph of Article 26, even for States which
subsequently have ratified, accepted, approved it or acceded to it.
If there has
been no denunciation, it shall be renewed tacitly every five years.
Any denunciation
shall be notified to the Ministry of Foreign Affairs of the Kingdom of the
Netherlands at least six months before the expiry of the five year period. It
may be limited to certain of the territories or territorial units to which the
Convention applies.
The denunciation
shall have effect only as regards the State which has notified it. The
Convention shall remain in force for the other Contracting States.
Article 28
The Ministry of
Foreign Affairs of the Kingdom of the Netherlands shall notify to the States
Members of the Conference, and the States which have acceded in accordance with
Article 24, the following -
(1) the
signatures and ratifications, acceptances and approvals referred to in Article
23;
(2) the accessions referred to in Article 24;
(3) the date on which the Convention enters into force in accordance with
Article 26;
(4) the extensions referred to in Article 25;
(5) the declarations referred to in Article 21;
(6) the reservations and the withdrawals of reservations referred to in
Article 18;
(7) the denunciations referred to in Article 27.
In witness
whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at The
Hague, on the 14th day of March, 1978, in the English and French languages,
both texts being equally authentic, in a single copy which shall be deposited
in the archives of the Government of the Kingdom of the Netherlands and of
which a certified copy shall be sent, through diplomatic channels, to each of
the States Members of the Hague Conference on Private International Law at the
date of its Thirteenth Session.
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