Ответственность сторон в международном договоре коммерческого представительства (агентском соглашении)

Abstract

The article reviews certain issues of the responsibilities of the parties in the international treaty of commercial representation (agent contract) on the basis of national and foreign legislation, international legal acts and also standard international agent contracts developed within various international organizations. The first part of the article studies certain aspects of responsibility of the parties in the sphere of internal relations of commercial representation (the principal/ the agent). It stresses the notion of improper realization of the treaty, leading to the responsibility of one of the parties in the legislation, judicial practice and foreign states' doctrine. The only exception from the general rule of absence of responsibility of the representative in relation to the represented party for non-realization of its obligations by a third party (the client) is del credere terms, due to which the agent can guarantee the principal from the client's default. Such terms are legal but they must meet some restrictive requirements: — del credere contract should be signed in writing, otherwise it is not recognized as valid; — the agent has no responsibility for any violation by a third party of his treaty obligations but guarantees the principal only from full or partial client's default; — a number of countries restrict the responsibility to be taken on by the agent. A special case of the principal's responsibility in the relation to the agent is folding up of the principal's activities, which leads to slowing down the agent's activities. The second part of the article is devoted to certain aspects of the responsibilities of the parties in the international legal relations (the principal/the third party). The commercial representative has a right to exceed his powers. In case of implicit or tacit ratification, the principal has a responsibility in relation to the third party for the commercial agent's activities that go beyond the framework of his powers. However, this does not exclude regress responsibility of the representative in relation to the represented party in the sphere of internal legal relations as the agent violated certain conditions of the agent treaty. In other cases the agent bears personal responsibility in relation to the third party. The reimbursement amount is defined in the court proceedings on all merits of the case. If the agent abuses his powers (i. e. when the agent's activities are in accordance with the law or warranty but are in contradiction to the confidential instructions of the principal), it is the principal who bears the responsibility in relation to the third party in accordance with the general rule. In conclusion the article considers the issues of the responsibilities of the parties in relation to the third party in connection with the violation of his rights to intellectual and industrial property.