Assessment of Arts 17 to 19 Commercial Agents Directive and Their Impact on Cross-Border Commercial Agency

In so far as parties can foresee the applicability of certain parts of substantive mandatory EU law, their reaction depends on the specific scope and effect of that piece of EU law. If all parties to a contract prefer a solution which differs from substantive mandatory EU law, they will attempt to use party autonomy to evade the respective provisions, e.g. by opting for the applicability of a non-Member State’s law which they deem preferable. Whether an arbitral tribunal will allow parties to make credible commitments in this respect depends on the consequences which upholding the parties’ choice will have for the arbitrators. Those consequences in turn depend on the results which can be reached in the review proceedings. Hence, determining in a generalised manner whether substantive mandatory EU law is over-enforced or under-enforced in international commercial arbitration is not possible. The question can be handled best by narrowing down the analysis on one particular example. For the purpose of this inquiry, the appropriate example is the Commercial Agents Directive’s regime for indemnity or compensation to the commercial agent upon termination.