Commercial agency

The grounds upon which recognition and enforcement are to be withheld from an arbitration award are strictly limited, particularly where the award is a foreign one and its validity falls to be determined under the New York Convention. Tugendhat J in Accentuate Ltd v Asigra Inc [2009] EWHC 2655 (QB), has added to the list of awards which cannot be recognised and enforced in England. The learned judge has held that certain aspects of the Commercial Agents (Council Directive) Regulations 1993, which implement into English law the Commercial Agents Directive, Council Directive 86/653/EEC, are incapable of being set aside by contract, so that any award which is incompatible with them is not to be given the force of law in England.

Accentuate: the facts

In January 2004 Accentuate, an English company, entered into a Master Reseller Agreement (‘MRA’) with Asigra, a Canadian company, under which Accentuate was to distribute Asigra’s software products in England. The MRA was governed by the law of Ontario and any disputes were to be referred to arbitration in Toronto. On 13 November 2006 Asigra gave notice to terminate the MRA. Accentuate’s response was to inform Asigra that it was preparing a claim for breach of contract, including a claim for compensation under art 17 of the Commercial Agents (Council Directive) Regulations 1993. The Regulations depart from the common law by conferring upon an agent the right, following termination of the agency relationship, to receive compensation representing profits made by the principal from introductions effected by the agent. The total sum claimed by Accentuate was £1.75m.