Kodifikation des Internationalen Privatrechts der Stellvertretung
Jahrgang 80 (2016) / Heft 3, S. 481-542 (62)
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The private international law of agency is one of the last uncodified fields in German conflict of laws. The European Union was also not able to reach a consensus in this respect in the Rome I Regulation. The Hague Convention of 14 March 1978 on the Law Applicable to Agency is neither in force nor signed by most states, including Germany. Nevertheless, many states enacted national codifications of the law applicable to agency, some just recently, like in Poland, the Czech Republic or Turkey. This indicates the practical relevance and need for codification of this field of private international law. In addition, the international as well as the national discussion of this issue shows some consolidated benchmarks of acceptance as a part of a potential basis for a codification of the law applicable to agency. Therefore, an academic council in Germany supporting the Federal Ministry of Justice (Deutscher Rat für Internationales Privatrecht) suggests (after having considered the opinion given by the author) the introduction of a new rule on this topic, first in German conflict of laws and at a later stage potentially in European conflict of laws. The disposal of pieces of land and interests in land shall be excluded from the scope of the proposal; insofar the lex rei sitae is applicable. In accordance with the Rome I Regulation (Art. 20), renvoi shall be excluded. The first guiding principle for the conflict rule on agency is – according to the actual discussion and particularly in view of the foreseeability of the applicable law – the autonomy of the parties with regard to the choice of law. It should be considered whether the choice of law of agency has to be based on a consensus between the contracting party of the main contract (third person) and the principal (bilateral conception), or if the principal can choose unilaterally, as it is possible to give somebody the power of agency without his consent (e.g. in accordance with German internal law). The relevance in private international law is significant. In the absence of a consensual choice of law, the determination of the applicable law must be made on the basis of other connecting factors. Furthermore, under the bilateral conception the principal is not able to change the choice of law in a one-sided manner. Hence, it is consistent to accept in every case a consensus choice regarding the law of agency as reached between the principal and the third person. Nevertheless, the principal has to have the possibility to determine the applicable law unilaterally before the agent has acted in exercise of his authority, provided that the agent and the third person are aware of this unilateral choice of law. In the absence of choice, the common connecting factor in the private international law of agency has been considered to be the state in which the agent has acted. In the age of modern communication facilities (e.g. the Internet), this location and therefore the applicable law is often not foreseeable for the principal and the third person. The highest ranking connecting factor is, in accordance with the current discussion, generally the habitual place of acting as someone's agent or the principal place of business of the agent. This is the case if the agent is acting as an entrepreneur or at least within a permanent power of attorney and if his habitual place of acting or his principal place of business can be identified. Therefore, the law of the state in which the agent has acted should be attributed only a secondary meaning, provided that this place can be identified. If it cannot, the law of the state needs to be applied in which the principal has his habitual residence, and if the agent and the third person should have known that the power of agency has to be used only in a state determined by the principal, the law of that state has to be applied.