In Accentuate v Asigra [2009] EWHC 2655 (QB) the English High Court held it had jurisdiction to hear a claim for compensation under the Commercial Agents (Council Directive) Regulations 1993, even though the relevant agreement was subject to a choice of Canadian law and arbitration and the Canadian arbitral tribunal had already ruled against the claim.

This goes further than the European Court of Justice ruling in Ingmar v Eaton Leonard Technologies [2000] ECR I-9305, which established that the Regulations could not be defeated by a choice of non-EU law. In that case the agent was active in the UK but the parties had chosen the law of California (where the principal was based) to govern the contract. The European Court of Justice held that the mandatory provisions of EU law which are given effect by the Regulations could not be evaded “by the simple expedient of a choice-of-law clause”.

In Accentuate, the High Court said that the ECJ's decision in Ingmar required it to give effect to the Regulations, notwithstanding any expression to the contrary on the part of the contracting parties. It held that this must apply as much to an arbitration clause providing for both a place and a law other than one that would give effect to the Regulations, as it did to the simple choice of law clause that was under consideration in Ingmar.

Where the Regulations apply, the agent receives important benefits such as the right to potentially generous payments on the termination of the agency. Such benefits generally cannot be excluded by agreement between the parties. This decision shows that they also cannot be avoided by a choice of non-EU law and arbitration.

Click here for a more detailed bulletin on this case prepared by our international arbitration group.