Commercial Agency Agreements: Law and Practice

✍ Scribed by Susan Singleton

• Publisher: Bloomsbury Professional
• Year: 2020
• Tongue: English
• Leaves: 469
• Category: Library

✦ Synopsis

Examines the standard commercial agency agreement where an agent is self-employed and paid a commission on sales he or she generates for the principal as it is those agents that fall within the Regulations. It addresses the drafting of such agreements as well as termination and compensation and includes examples of agency contracts and coverage of the majority of UK judgments.
The fifth edition has been updated to include:
Ramsay v Typhoo Tea 2016; Software Incubator 2016 and application of the agency regulations to agency contracts; Monk v Largo 2016 Invicta v International Brands 2013; Medsted Associates Ltd v Canaccord Genuity Wealth (International) Ltd (2119 Court of Appeal) relating to secret commissions and fiduciary duties of agents; W Nagel (a Firm) v Pluczenik Diamond Company NV 2018 Court of Appeal - about "commodity exchanges" and the agency regulations; Agro Foreign Trade & Agency Ltd v Petersime NV (2017 CJEU) Choice of law issues - Belgium and Turkey; One Money Mail Ltd. v (1) Ria Financial Services (2) Sebastian Wasilewski (Court of Appeal) - 2015 post termination restrictions on agents; Brand Studio Ltd. v St. John Knits, Inc 2015 (indemnity and compensation clauses); Bailey v Angove’s Pty Limited [2016] Authority of agents to recover debts (Supreme Court decision)

✦ Table of Contents

Preface
Table of Cases
Table of Statutes
Table of Statutory Instruments
Chapter 1 Introduction and definitions
The agent and distributor
Who is an agent or distributor
Case example
Case example
Definitions
Relevance of application of the Regulations
Self-employed
Agents who are companies
Partnerships
Continuing authority
Example
What is negotiation?
Del credere agents
One-off agents
Case example
Purchasing agents
Non-commission agents
Who is the principal?
Case example
Exclusions
1 Officers of a company
2 Partners
3 Insolvency practitioner
4 Unpaid agents
5 Commodity exchanges
6 Crown agents
Goods and services
Financial services
Software contracts
Case example
Case example
Case example
Sub-agents
Secondary activities Schedule
Secondary activities in the Tamarind case
Secondary activities and the Gailey case
Secondary activities and the Zako v Sanidel case (CJEU)
Secondary Activities
Case example
Case example
Pyramid selling
Internet shopping
Software distribution
Mail order and consumer credit agents
Jurisdictional issues
Northern Ireland
Activities in Great Britain
Other EU law applies
UK parties
Other EU law specified
No written contract
Draft contracts
Using GB law outside the UK
Case example
Agent appointed under non-EU law
Forum shopping
Agent operating in several states
Obtain foreign law advice
Transitional arrangements
No written contract
Checklist
Further information
Chapter 2 Duties of the agent and principal – choosing and using an agent
Choosing an agent
Agent to act in good faith
Case examples
One Money Mail case – restrictive covenants and enticement
Negotiation by agent – prices and terms
Communication of information
Written or oral?
Variation of agreements
Case example – changing the contract
Parties
Appointment clause
Exclusivity
Products
Territory
Commencement date
Obligations of the agent
Sales targets
Principal’s obligations
Confidentiality
Personal performance
Exclusion of liability
Insurance and agents
General points – boilerplate
Signature
Checklist of clauses
Foreign agents – special points
Further information
Chapter 3 Competition law and agency agreements
EU competition law and agency
Article 101(3) – Beneficial restrictive agreement
Block exemptions
Brexit
Consequences of infringing EU and UK competition law
Guidelines on Vertical Restraints
Case example
Case example
Book Publishers and Apple – Ebooks Agreements 2012
Online hotel bookings
Online hotel bookings and price fixing
2019 undertakings – hotel booking companies and advertising law
EU Online Intermediation Services Regulations 2019
Advice to ascertain if a website is an agent or not
Other cases
What to do in practice
Further information
Chapter 4 Commission and other payments
The Regulations
Form and amount of remuneration under the Regulations
What rates are customary?
Changing commission rates
Case example
On what is commission paid?
Commission on orders during the agency agreement
EU case
Commission after the contract is over
When the Regulations do not apply
Apportionment of commission with previous agent
When should commission be paid to the agent?
Instalments
Extinction of the right to commission
Example
Other commission issues
Rights to information and inspection of books
What happens if the agent takes a secret bribe?
Press Summary
Further information
Chapter 5 Monitoring and terminating an agency agreement
Monitoring
Meetings
Notice of termination of the agency
Example
Working a notice period
Fixed period agencies
Causes of termination
Agencies outside the Regulations
Breach of contract
When no indemnity or compensation is payable
Breach by the agent
Case examples
Breach of contract
Where the agent terminates the agreement
Constructive termination
Case example
Case example
Case example
Case example
Age
Illness and infirmity
Assignment
Death
Expiry of a fixed term
Case example
Termination on notice
Termination on sale of a business or sale of shares
Business closed
Resignations
Sub-agencies
Other cases
Chapter 6 Compensation, indemnities and litigation
Post-termination commission and notice period damages
Money claims on termination
Case example
Case example
Statistics and settlements
Compensation or indemnity – which applies?
The indemnity
Claims within one year
Substantial benefits and equity
The one-year indemnity cap
Lonsdale and Indemnity
The indemnity and the Commission’s 1996 Report
The calculation
Stage 1
Stage 2
Stage 3
Commission’s example – indemnity
Compensation
The Lonsdale case and compensation – Compensation for what?
Lonsdale case: Future revenue stream
Lonsdale – no other assumptions
Valuation and expenses
Lonsdale – Amount awarded
Finding and paying valuers
The Tigana v Decoro case
Case example
Case example
Breaches of contract reduce compensation
Net or gross?
Time limit
Substantial benefits
The Commission’s 1996 Report and compensation
Estimating the loss for compensation
No contracting out
The Duffen case and penalty clauses
The facts
Other contract clauses
Claiming damages for breach of contract in addition
Legal costs and agents
Conditional fee arrangements
Reducing compensation – principals
Other contract provisions – indemnity or compensation
Restrictive covenants and agency
Litigating agency claims
Pre-action correspondence
Where to litigate
Counterclaims
Offers and settlements
Disclosure
Witness statements
Trial
Further information
Chapter 7 Valuations of Commercial Agents
Commission under Regulation 8
How compensation under Regulation 17 should be calculated
Valuation methodologies
Multiples
Discount rate
Regulation 8
Indemnity or compensation
The Lonsdale rules
Allocation of costs
Issues frequently arising in commercial agency valuations
Type of customers and evidence in customer files
Restrictive covenants
Level of skill and experience required
Office costs
Net assets retained
Worked example 1:
Worked example 2:
Practical points
Chapter 8 Foreign agency arrangements
List of issues
Law and jurisdiction
Public policy and compensation
Case example
Case example
Case example
Protecting agents in non-compensation states
Export control
Foreign agents – information
Practical issues with foreign agents
Agent or distributor?
Summary of agency agreement contents
1 Appointment
2 Duration and notice
3 Duties
4 Targets
5 Commission
Example
Issues to consider in agreements – commission
Restrictive covenants
Other clauses
Monitoring
Example
Resolving disputes
Breach of contract
Notices of termination
Further information
Appendix 1 UK commercial agency laws and materials
Commercial Agents (Council Directive) Regulations 1993 (SI 1993/3053)
Commercial Agents (Council Directive) Regulations (Northern Ireland) 1993 (SI 1993/483)
Department of Trade and Industry Guidance Notes on the Commercial Agents (Council Directive) Regulations 1993 (September 1994)
Appendix 2 European Community materials
Council Directive of 18 December 1986 (86/653) on the coordination of the laws of the Member States relating to self-employed commercial agents
Report on the application of article 17 of Council Directive on the coordination of the laws of the Member States relating to self-employed commercial agents (86/653/EEC)
Commission Notice – Extract from Guidelines on Vertical Restraints (OJ 2010/C 130/01)
Commission Staff Working Document, published on 17 July 2015 – Evaluation of the Council Directive on the Coordination of the Laws of the Member States Relating to Self-Employed Commercial Agents (Directive 86/653/EEC)/ Refit Evaluation (Doc. Com (96) 354
Appendix 3 Transcript of judgments
Lonsdale (t/a Lonsdale Agencies) (Appellant) v Howard & Hallam Limited (Respondents)
Tigana Limited v Decoro Limited
Appendix 4 Sample agency agreements
1. Sample agency agreement drafted from perspective of principal
2. Example of agency agreement drafted from principal’s point of view
3. Short sample agency agreement written from agent’s perspective
4. Sample letter making agency claim
5. Letter rejecting agent’s claim
6. Sample particulars of claim – county court
7. Example of defence and counterclaim
8. Consent order
Index