Stellvertretung, IPR und ein optionales Instrument für ein europäisches Vertragsrecht (Agency, Private International Law and an Optional Instrument for a European Contract Law)

Abstract

Whether a possible draft optional instrument for European contract law (OI) will contain rules on agency seems as of yet unclear. A lack of rules on agency would constitute an external gap to be filled with the substantive national rules designated by the choice of law rules of the forum (subject to the actual rules on gap-filling in an OI). This would run counter to the purpose of an OI. If, however, an OI were to contain rules on agency, making them applicable would raise two issues: (i) Since the interests of three persons are affected, the ordinary rules on bilateral party choice may not be sufficient, and (ii) while parties may have an interest to ascertain the extent of the agent’s authority before the conclusion of the contract, optional agency rules can by definition only be applied upon party choice. This paper first examines existing choice of law rules regarding the external aspects of agency, a matter excluded from Rome I. It then analyses their effect on the choice of an optional instrument and discusses various reactions. The following approach appears preferable for implementation: Rules on agency in an OI (that cannot extend to authority bestowed by law) always apply when the contract concluded with the help of an agent is governed by the OI. Therefore, choice of the OI requires that the agent could reasonably be aware of such choice. The requirement that the agent be authorized to effect such choice and the protection of the agent in case of a subsequent choice of an OI should be taken care of by general rules in the OI subjecting the validity of the choice to be determined by the provisions of the OI and protecting the rights of third parties in general, similar to Art. 3(2), (5) Rome I.

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Keywords: agency, representation, choice of law, optional instrument, gap-filling, harmonization, common frame of reference, principles of european contract law, unidroit principles of international commercial contracts, rome i regulation, Hague convention