La demanderesse, une entreprise allemande, était l'agent exclusif de la défenderesse dans l'ex-République démocratique allemande depuis près de vingt ans. La défenderesse, une société autrichienne, résilia leur contrat en 1991. Arguant que la défenderesse continuerait à bénéficier des relations d'affaires qu'elle avait établies par ses nombreux contacts directs en RDA, la demanderesse réclama une indemnité conformément à la loi autrichienne sur l'agence commerciale. La défenderesse s'opposa à cette demande au motif que dans leur contrat, les parties avaient exclu l'application de cette loi et l'avaient remplacée par une disposition accordant à la demanderesse, durant la période comprise entre la résiliation et la fin effective du contrat et ensuite durant six mois, 50 % de la commission normale sur les ventes qu'elle avait contribué à obtenir et 1 % du prix de vente correspondant autres ventes. Elle arguait en outre que l'activité de la demanderesse consistait principalement à entretenir des relations avec les organismes d'import-export d'Allemagne de l'Est, qui représentaient les utilisateurs du matériel industriel de la défenderesse. Ces organismes disparurent ou furent repris au moment de la réunification allemande, ce qui rendait impossible la poursuite de relations d'affaires dont la défenderesse pouvait continuer à bénéficier.

'In point 21.4 of the agency agreement (Exhibit A), the parties agreed to apply Austrian law to all disputes arising out of the contract, but excluded the applicability of the mandatory provisions for domestic agents.

Under Article 13(3) of the ICC Rules of Arbitration, the parties are free to determine the law to be applied by the arbitrator to the merits of the dispute.

Both parties have invoked the provisions of s. 11 of the Austrian Private International Law Act in support of their legal viewpoint on the question to what extent the applicability of mandatory provisions of the chosen law can be excluded in the context of the choice of law. In fact, the Austrian Private International Law Act of 5.06.1978 (IPRG) was not yet in force at the time when the agreement was concluded, and s. 36 of the Austrian Civil Code (ABGB) was applicable to questions regarding the permissible choice of law. Under s. 36 ABGB, a choice of law could only be made insofar as it affected non-mandatory provisions of the law.

A choice of law excluding mandatory Austrian provisions was not permissible under s. 36 ABGB where there was at least one domestic party to an agreement concluded in Austria (cf. Walker, Verdroß-Droßberg, Satter in Klang, Kommentar zum ABGB 1964, Vol. 1 p. 237; Schwind, Handbuch des Internationalen Privatrechts, 1975 p. 293, Austrian Supreme Court 7.6.1961, SZ 34/91).

Even before the introduction of s. 10 IPRG, by which the law governing the status of a legal entity is determined by the actual seat of the legal entity, the "seat theory" was the predominant method of allocating a juristic person to a particular legal system (Schwind, p. 133). Defendant is a company under Austrian law with its seat in Vienna, and is therefore a domestic party. Accordingly, the exclusion of mandatory provisions of Austrian law was not permissible under s. 36 ABGB, since a domestic party (Defendant) and a foreign party (Claimant) were involved in the agency agreement.

In the Tribunal's view, exclusion of mandatory provisions of a legal system or parts thereof chosen by the parties in the context of their autonomy to determine which of two conflicting sets of rules should apply would not be effective even within the scope of the 1978 IPRG from the viewpoint of the abuse of law, since this would make it possible to bypass the mandatory rules of any legal system.

Finally, the formulation "the mandatory provisions applying for Austrian domestic agents" in the agreement is unclear, as the Commercial Agency Act (Handelsvertretergesetz - HVG) makes no distinction between "foreign agents" and "domestic agents". But unclear terms are to be interpreted to the disadvantage of the party that has used them (s. 915 ABGB). It was ascertained that the text of the agreement was a model text provided by Defendant, so that the unclear formulation chosen in it was to be interpreted at Defendant's expense.

Therefore the stipulation in point 21.4 of the agency agreement, by which the application of the mandatory provisions that apply to Austrian domestic agents is excluded, cannot change the applicability of the Austrian HVG as a whole. However, this also means that the provision adopted in point 19.4 of the annex to the agency agreement by which company [X] (Claimant) may not claim any compensation for the termination or early dissolution of this contractual relationship is void, since it is contrary to the mandatory provisions of the Austrian HVG; under s. 28 of the HVG, the provision in s. 25 HVG cannot be set aside or restricted by agreement in advance to the commercial agent's disadvantage. Under s. 25(1) HVG, a commercial agent who has engaged solely or primarily in recruiting customers is entitled to receive appropriate compensation on the dissolution of the contractual relationship if the business relationship with the recruited customers has resulted in benefits to the principal or the latter's legal successors that persist after the dissolution of the contractual relationship.

If the contractual relationship has lasted for more than twelve years, the compensation payable to the commercial agent is at the most three-twelfths of the annual commission, where the annual commission is taken as the average of the last three years preceding the termination of the contractual relationship.

The entitlement to compensation laid down in s. 25 HVG is intended to compensate the commercial agent for the benefits that continue to be enjoyed by the principal after the end of the agreement as a consequence of the introductions by the agent. (Jabornegg, HVG p. 486 on s. 25). As regards its legal nature, the appropriate compensation under s. 25 HVG is neither a claim for damages nor a claim for enrichment, but simply a special payment for the benefits that persist beyond the end of the agreement, and therefore a performance-related further remuneration (Jabornegg, loc. cit.).

Under s. 25 HVG, the commercial agent is only entitled to claim compensation if he engaged primarily in recruiting customers. That condition is met here. It is not possible to follow Defendant's view that there was no question of recruiting customers since, given the economic structures within the territory of the GDR, only the individual foreign trade enterprises and ultimately the German Democratic Republic itself was the sole customer. The Volkseigene Betriebe (state-owned enterprises) or VEBs were nationalized enterprises or enterprises set up by the state. In 1989, 79.9% of the GDR's workforce worked in the VEBs. Based on the numbers gainfully employed, the VEBs were the predominant form of industrial organization (98.2%; cf. Brockhaus Enzyklopädie 19th ed., vol. 23 p. 413). Even though their degree of individual decision-making power and their structural position within the overall national economy varied over time, and though the economic order in the GDR was characterized in part by the state monopoly of foreign trade (Brockhaus, vol. 5, p. 309), it has to be taken that, according to generally accepted standards and also for the purpose of the Austrian HVG, the state-owned enterprises of the former GDR are to be regarded as individual customers in the meaning of s. 25 HVG.

Further, the business relationship must have resulted in benefits to the principal that remain effective after the dissolution of the contractual relationship. This relates primarily to the expected continuation of business relationships after the dissolution of the commercial agency agreement. However, if the principal fails to provide for the continuation of the business relationships in question or even deliberately breaks off contacts with the recruited customers, this cannot have an adverse effect on the compensation claim (cf. Jabornegg p. 504).

In any case, from 1992 to 1994 Defendant had follow-up orders (even if only to a very limited extent) from the customers formerly recruited by Claimant. This alone resulted in benefits for Defendant. The products supplied by Defendant, for which Claimant acted as the agent, are capital goods. Capital expenditure of this size is certainly not a regular event, so that follow-up orders cannot necessarily be expected immediately after equipment is purchased. It therefore appears quite possible and probable that follow-up orders will often only occur after a number of years, either through the delivery of replacement parts or through replacement or expansion of the existing equipment. Accordingly, the circumstance that Defendant's equipment is in use in the firms in itself already suggests that there will be future continuation of the business relationship.

This, together with the fact that Defendant has gained a footing on the territory of the former GDR at all, must be regarded as a continuing benefit resulting from Claimant's activity as an agent.

Under s. 28 HVG, the commercial agent is entitled to receive appropriate compensation. Maximum sums are laid down in s. 25(2) and (3) HSV [sic] Here the Court is authorized to act on its independent conviction when setting the level of the compensation (SZ 49/93).

In the present matter, the following circumstances were to be taken into account as criteria in determining the claim for compensation:

- The sales achieved by Defendant with the customers recruited by Claimant in the territory of the former GDR have fallen substantially. This is primarily due to the political and economic changes resulting from the events of 1989. As Claimant itself has described, its experience with other principals showed the inevitability of a "deep slump" because it was difficult to predict sales following the changes in the GDR.

- The legal and ownership structures of the enterprises have changed, and new decision-making structures have also been developed within them as a result. Accordingly, increased marketing efforts are needed to bring sales in the territory of the former GDR back up to their levels before the political changes.

- Some of the enterprises formerly supplied have been wound up.

- In the years since the political changes, Defendant has also received orders from those enterprises that form part of the clientele acquired by Claimant.

- It is established that Defendant is not breaking totally new ground on the territory of the former GDR; the equipment already installed means that it can use existing customers as references, and that spare-part orders or follow-up orders cannot be ruled out in future.

Overall, the circumstances beyond Defendant's control that resulted in Defendant being unable to achieve sales equal to those in the years up to 1989 from the customers introduced to it are of much greater weight than the circumstances that finally benefit Defendant.

On consideration of all these aspects, compensation amounting to 20% of the statutory maximum appears appropriate, including allowance for the 1% commission for follow-up transactions occurring after the dissolution of the agreement without any input by Claimant; this 1% commission has already been granted in accordance with the provisions of the agreement.

. . .

In the consistent practice of the courts dating from the Supreme Court's opinion on damage resulting from delay (SZ 5/53), the creditor of a due and unpaid monetary debt also has a claim under commercial law to compensation for losses and lost profit in excess of the statutory interest.

Claimant has claimed 8.5% interest on arrears; Claimant is entitled to the amount of the claim since the date of dissolution of the agreement. Accordingly, Claimant is to be awarded the interest that it would have obtained on fixed deposits from 1.07.1991 as far as it has supplied relevant evidence (22.11.92). No confirmation of interest rates has been submitted for the period after 22.11.1992, and therefore from 23.11.1992 Claimant is entitled to receive interest on arrears at the statutory rate of 5%.'