The substantive legal details of the compensation claim will not be discussed here. The calculation of the claim in particular can be very complicated. However, this article is concerned with the procedural enforcement in international cases.
The international character of the facts in this article is given by the entrepreneur abroad. It is assumed here that the commercial agent is active in Germany, but works for an entrepreneur based abroad, for example, acting as an intermediary for buyers of machines from a manufacturer in the USA, Australia or Japan.
A few constellations need to be distinguished:
‘German’ choice of law and court proceedings in Germany
If the commercial agency agreement provides for a choice of law in favour of German law and a jurisdiction agreement in favour of German courts, enforcement is unproblematic. Under German law, the commercial agent is entitled to compensation and German courts will recognise the commercial agent’s claim if the requirements are met. An exclusion of the claim is ineffective according to § 89b para. 4 sentence 1 HGB. However, the commercial agent should check the extent to which a judgement is also enforceable in the USA, Australia or Japan, or whether the principal has enforceable assets at least in Europe, before starting the process.
‘Foreign’ choice of law and court proceedings in Germany
The situation is somewhat different if the contract provides for the choice of a foreign law. It may seem a little unusual without legal precedent, but in fact German courts also apply foreign law – for example, if this results from a choice of law by the parties.
In our example, it may be tempting for the American manufacturer to provide the commercial agent with a choice of law in favour of American law. This is because the compensation claim under German law is not dispositive, but American law may ‘conveniently’ not recognise such a claim.
It was precisely this practice that the ECJ had to assess in the well-known Ingmar decision (Ingmar GB Ltd. v. Eaton Leonard Technologies Inc., C-381/98). There, the ECJ ruled in a nutshell that it violates the European Commercial Agency Directive if the commercial agent’s mandatory right to compensation is circumvented by a choice of law.
‘Foreign’ choice of law and court proceedings abroad
The manufacturer may now go one step further and agree a jurisdiction agreement in favour of its home courts. A German court would then have to declare itself without jurisdiction in the event of an effective jurisdiction agreement, and the court in the USA, Japan or Australia would probably ignore the internationally mandatory nature of Section 89b HGB.
The BGH has assessed this situation (BGH, decision of 5 September 2012 – VII ZR 25/12) and ruled that a jurisdiction agreement is also invalid if it indirectly leads to the exclusion of the compensation claim.
‘Foreign’ choice of law and arbitration proceedings
If the commercial agent and manufacturer have agreed an arbitration clause, the result is likely to be the invalidity of the clause – at least insofar as a legal dispute concerns the equalisation claim. Although this has not yet been decided by the BGH or higher regional courts in this case, it is recognised that an arbitration clause that leads to a disregard of international mandatory law is invalid (BGH, judgement of 18. 12. 1958 – II ZR 351/56). The consequence would be that the commercial agent can sue for compensation before a German court without the manufacturer being able to invoke the arbitration defence pursuant to Section 1032 (1) ZPO.
Commercial agents should thoroughly examine the judicial enforcement of possible compensation claims in order to avoid writing off claims too early due to the applicability of foreign law, possible jurisdiction abroad or an arbitration tribunal.
