International Commercial Contracts & Agency

This assignment delves into the complexities of international commercial contracts, specifically examining an agency agreement governed by Polish Civil Code provisions with potential conflict due to Portuguese law influences. The analysis explores legal principles from both jurisdictions, including the Rome I Regulation, UNIDROIT Principles, and relevant case studies. The document emphasizes the importance of clear contractual terms, choice of governing law, and the role of evidence in resolving disputes.

Running head: INTERNATIONAL COMMERCIAL CONTRACTS
Commercial Agency
Name of the student:
Name of the university:
Author note

1INTERNATIONAL COMMERCIAL CONTRACTS
Introduction:
The current problem is based on the agency agreement of Poland. In Poland, the distribution
agreement is governed by the Civil Code and the provisions of this code are applied on every
legal relationship regarding the agreement (Maia 2015). It has been mentioned under Article
353 of the Code that parties can choose the terms of the contract and in the absence of any
statutory provision, the contractual terms can be of oral in nature. The parties are obliged to
maintain all the provisions of the contract. In the absence of any specific legal provision, the
general law will apply.
Discussion:
In this given case study, it has been observed that certain dilemmas have been
cropped up regarding the application of legal provisions. The agreement on commercial
distribution is governed by Polish Civil Code. Further, certain provisions of the Rome I
Regulation will be applied here to determine the contractual relation and obligations (Silva
2017). These provisions are regulated the freedom, security and justice. A confliction of law
has been observed in this case as there are two different country’s law involved such as the
Portuguese law and the Polish law. Conflict of law has been termed as private international
law in Portuguese speaking countries. The conflict of interest can be avoided by applying the
law of the country where the contract has been formed. However, there can be conflicts as the
legal provision of two countries can be different and therefore, the international law should
be applied to avoid the dilemma. Rome I Regulation is applied to the contractual cases where
the parties are from different countries. The provisions of this regulation have widened the
contractual relations and provide equal freedom to the parties (Henriques 2015). The
fundamental principles of contract have been stated under the Principles of European
Contract Law. On the other hand, the principles of UNIDROIT are comprised of certain

2INTERNATIONAL COMMERCIAL CONTRACTS
general rules necessary for International Commercial Contracts. Under Article 1.2 of these
principles, it has been mentioned that no specific form is required to make a contract.
However, all the rules of the contract should be decided on mutual basis and each party
should have to maintain these rules.
In the given case, it has been mentioned that Robert is a commercial agent and Jake
is the principal therefore, principal agent relationship has been existed in between them. All
the contractual obligations of Portugal are governed by the Civil Code. However, certain
differences can be observed under this contract. In Portuguese Contract, besides offer and
acceptance, negotiations and auction is playing important role (Villanueva 2015). These two
terms can either be oral or written. It also has been observed in the given case that the nature
of the contractual agreement is distributive. The Civil Code (CC) of Portugal has mandatorily
observed that the terms of the contract should clear by their means and must be specific.
There should not be any ambiguity present and any of the provisions must not affect the
interest of either party. It has been mentioned under the current case that both the executives
of Robert and Jake had decided that the terms and validity of this contract will be governed
by the Portuguese law. Under the Civil Code it has been mentioned that unless the presence
of any statutory law, the oral submissions will be considered as an acceptable rule and the
governing parties must have to follow these rules. The contractual provision of Poland is
quite different from the English Law and it is a member of the United Nations Conventions
on Contracts. Therefore, Rome I regulations will also be applied in this case and the
relationship in between the two will also get effected by it.
Rome I Regulation has been implemented in the year 2008 and it regulates the
contractual obligations of the member countries of the European Union. This regulation is
dealing with certain contractual principles such as the freedom of the parties, mandatory
provisions, scope of applicable laws and certain other provisions like set off, burden of proof,

3INTERNATIONAL COMMERCIAL CONTRACTS
and public policies (Carneiro, Portugal, and Varejão 2014). Article 3 of the Rome I
Regulation has given free rights to the contracting parties to choose the governing law for the
contract. The choice can be of express or implied in nature. In the absence of any choice on
governing law, the law of distributor’s home country will be applied. However, in case of any
conflict of laws, the principle of renvoi will be applied. The term Renvoi has been prescribed
under Article 20 of the Rome I Regulation (Meyer 2016). In this given case, it has been
observed that both the parties have decided the Portuguese law as their governing law on
telephone conversation. However, there is no proof of the fact. As per Roman I Regulation, a
contract can be based on verbally, however there should be sufficient proof to the fact.
Otherwise, the law of distributor’s country will be applied here. If the Polish law will apply,
then before terminating the terms of the contract, the willing party needs to inform the other
party and should serve a notice as per the law (Mak 2017).
Conclusion:
It has been observed that if the telephonic conversation can be witnessed, the
distributor/principal needs to serve a notice first or should inform the agent. However, he had
not done the same and therefore, proper provision of the Rome I Regulation will be applied
on him. Further, it can be stated that if the conversation cannot be proved, the legal process of
the principal’s home law will be applied here as per the provision of the regulation. Both the
provisions have been maintained by the UNIDROIT too. However, the burden of proving the
facts is lying on the claimant. However, the dispute should be resolved through arbitration
and in case of any adverse situation, the principle of renvoi will be applied.

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Reference:
Carneiro, A., Portugal, P. and Varejão, J., 2014. Catastrophic job destruction during the
Portuguese economic crisis. Journal of Macroeconomics, 39, pp.444-457.
Henriques, D.G., 2015. The role of good faith in arbitration: are arbitrators and arbitral
institutions bound to act in good faith?. ASA Bulletin, 33(3), pp.514-532.
Maia, P., 2015. Portugal: The Implementation of Directive 2005/29/EU from the Perspective
of Portuguese Private Law. Journal of European Consumer and Market Law, 4(5), pp.204-
208.
Mak, C.H., 2017. Commercial Agents (Council Directive) Regulations 1993: English and
Scottish Commercial Courts Interpretation of the Law Reflects Reality.
Meyer, C.A., 2016. Agency and Distribution Contracts, Choice of Law and Arbitration in
Europe. ASA Bulletin, 34(3), pp.629-633.
Silva, M.S., 2017. § 9 Could Portuguese Courts Use the DCFR over National Sources of
Law?. In The Draft Common Frame of Reference as a" Toolbox" for Domestic Courts (pp.
229-231). Springer, Cham.
Villanueva, E., 2015. Employment and wage effects of extending collective bargaining
agreements. IZA World of Labor, (136).