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Lawlor V. Sandwik Mining And Construction Notes

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LAWLOR V. SANWIK MINING

AND

CONSTRUCTION

FACTS The claimant Mr Lawlor is an Irish citizen now apparently based in Andorra. He joined the defendant as an employed salesman in

1994. After short spells in Germany and in England he moved to Spain at first as an employee but soon as the defendant's agent in Spain for the sale of mobile screens and crushing equipment. The claimant has a degree in Spanish and speaks the language well. He was undoubtedly a successful agent. In 2006 the defendant sought to rationalise its agency network and offered existing agents posts as employees. Despite protracted negotiations agreement could not be reached and eventually the defendant terminated the agency. Although the claimant's right to compensation was initially disputed the claim is now conceded in principle. The claimant claims that the Regulations apply to his agency because the applicable law of the agency agreement was English law. The defendant claims that any agency agreement was governed by Spanish law. The preliminary issue for determination by the court is what was the applicable law of the agency agreement. It is common ground that the claimant acted as a commercial agent within the meaning of EC Directive 86/653 (the Directive) and that he is entitled to the appropriate relief for the termination of his agency. HOLDING Was there a "clearly demonstrated" choice of law by the parties under Art. 3?
Mr Randolph accepts that there was no express choice but contends that one was implied. The Report points to a previous course of dealing between the parties as an indication of implied choice. It is argued that Mr Lawlor's employment contract with Extec was "in all probability" expressly governed by English law. The Report gives as another example an express choice of law in related transactions between the parties. Mr Randolph cites as a transaction the express choice of law in the draft employment contract produced by Extec for signature by Mr Lawlor. Mr Randolph points out that since Mr Powell gave evidence that the draft employment contract reflected the terms of Mr Lawlor's agency, the defendant's argument that the draft represented a fundamental change to the nature of the relationship between the parties must fall away. But this is to misunderstand the distinction between the commercial business done by Mr Lawlor and the contractual framework within which it was carried

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