Jurisdiction Clauses in French Commercial Agency Contracts: The Clause You Drafted May Be Worth Nothing

Jurisdiction clauses in French commercial agency contracts: the clause you drafted may be worth nothing

Almost every commercial agency contract we are asked to review contains a jurisdiction clause. The principal's standard form sends every dispute to the commercial court of the principal's own city, the agent signs without negotiating it, and both sides assume the point is settled. When the relationship ends and the agent claims the termination indemnity under Article L 134-12 of the Commercial Code, the principal discovers that the clause it relied on for years may be a dead letter. In a purely French contract with an agent who is an individual, a jurisdiction clause is very often réputée non écrite, that is, deemed unwritten, and the agent is free to sue wherever the ordinary rules allow.

The reason has nothing to do with the agency statute itself and everything to do with a single sentence of the Code of Civil Procedure. Article 48 permits a departure from the statutory rules of territorial jurisdiction only between parties who have all contracted as traders. A commercial agent who trades in his own name as an individual is not a trader in French law. He is a civil agent, a mandataire civil, and the clause therefore fails at the first hurdle.

This article sets out, in order: why the individual agent is not a trader and when that changes; which French court actually hears an agency dispute and who gets to choose it; the exact conditions Article 48 imposes and what happens when they are not met; why the answer flips almost completely in a cross-border contract governed by the Brussels Ia Regulation; how to raise or resist a jurisdiction objection procedurally; and what principals and agents should each do about it when the contract is drafted.

Is the jurisdiction clause in your agency contract enforceable?

Three questions work out whether the clause binds you, and which court would hear your dispute if it does not.

Why a French commercial agent who is an individual is not a trader

Everything in this area turns on a status question that foreign principals routinely get wrong. The words agent commercial contain the word commercial, the agent sells goods for a living, he is registered at a court registry, and his invoices carry a business identification number. None of that makes him a trader, a commerçant, in French law.

The Commercial Code defines the commercial agent as a mandataire, an agent in the law of mandate, who on an independent professional basis and without a contract of employment is permanently entrusted with negotiating and, where applicable, concluding contracts of sale, purchase, lease or supply of services in the name and on behalf of producers, industrialists, traders or other commercial agents (C. com. Art. L 134-1). The words in the name and on behalf of are the operative ones. The agent does not buy and resell. He does not carry the stock, he does not take the credit risk on the customer, and the sales he negotiates take legal effect directly in the principal's estate, never in his own.

French law defines a trader as a person who carries out acts of commerce and makes that his habitual profession (C. com. Art. L 121-1). The agent's own activity is the performance of a mandate, which is a civil contract. What he does is commercial for the principal and civil for himself. That is why the Court of Cassation has consistently held the commercial agency contract to be civil in nature, with the practical consequences that follow, including the civil rules of evidence (Cass. com., 24 oct. 1995, n° 94-10.661). The same solution runs through a long line of decisions refusing the agent the status of trader (Cass. com., 29 oct. 1979, n° 75-14.226; Cass. com., 28 oct. 1980, n° 78-15.569; Cass. com., 14 juin 2005, n° 03-14.041).

Registration on the special register is not registration as a trader

Before starting, an agent established and operating in France must be entered on a special register of commercial agents kept at the registry of the commercial court, or of the judicial court, in whose district he is domiciled (C. com. Art. R 134-6). Principals see the word registry and assume this is the trade and companies register, the registre du commerce et des sociétés. It is not. The special register is a separate list, and entry on it says nothing about trader status.

It says very little about anything else either. The Court of Cassation treats registration as a measure of professional policing only, because the European directive that underpins the French statute does not condition the protective regime on any registration formality (Directive 86/653/EEC of 18 December 1986; Cass. com., 20 sept. 2011, n° 10-21.623). An agent who never registered still enjoys the full statutory protection of Articles L 134-1 and following, and still is not a trader.

The exception that changes everything: agency through a company

The analysis reverses when the agent is not an individual but a company. A société à responsabilité limitée (SARL), a société par actions simplifiée (SAS) or any other company in commercial form is a trader by reason of its form alone, whatever its actual activity. If the agency contract is signed by an agency company rather than by a person, both parties contracted as traders, and a jurisdiction clause that satisfies the second condition of Article 48 is perfectly valid and enforceable.

This is not a detail. It is the single most important fact to establish before advising either side. A great many French commercial agents operate through a one person SARL or SAS for tax and social security reasons, and their contracts read exactly like an individual agent's contract. The signature block, not the trading name, gives the answer. An agent operating through a société civile or as a sole trader who is not otherwise registered as a trader remains outside the commercial category.

Which court hears a commercial agency dispute in France

Because the agency contract is commercial on one side and civil on the other, it is what French lawyers call an acte mixte, a mixed transaction. The rules of subject-matter jurisdiction, the compétence d'attribution, then produce an asymmetry that surprises most foreign principals.

The commercial court, the tribunal de commerce, hears disputes between traders and disputes concerning acts of commerce between any persons (C. com. Art. L 721-3). The judicial court, the tribunal judiciaire, is the court of ordinary jurisdiction and hears everything not attributed to another court by statute (COJ Art. L 211-3). Applied to a mixed transaction, settled case law gives the non-trader an option and denies the trader the corresponding one. The agent who is an individual may choose either court. The principal, being a trader, may not drag a non-trader before the commercial court and must sue in the judicial court.

The practical consequence is worth stating plainly. A principal that terminates an individual agent and wants to strike first, for instance by claiming damages for breach of the non-competition obligation under Article L 134-3 of the Commercial Code, cannot open proceedings in its local commercial court. It must go to the judicial court in the agent's district. Principals that ignore this lose months to a jurisdiction objection before anyone has looked at the merits.

Territorial jurisdiction where no clause applies

Once the clause falls away, territorial jurisdiction reverts to the ordinary rules. The default is the court of the place where the defendant is domiciled (CPC Art. 42). In contractual matters the claimant has an additional option: the court of the place of actual delivery of the goods or of the place of performance of the service (CPC Art. 46).

For a commercial agent this second option is usually decisive and usually favourable. The service the agent performs is prospecting and negotiating in his territory, so the place of performance is his own sales area, which in the normal case is where he lives and works. An agent in Bordeaux suing a principal in Lille can therefore sue in Bordeaux, notwithstanding a clause in the contract naming the commercial court of Lille. That reversal, from the principal's home court to the agent's, is exactly what the clause was drafted to prevent, and exactly what Article 48 restores.

The tribunal des activités économiques

Since 1 January 2025, twelve commercial courts have been operating under an experiment created by the justice programming statute of 20 November 2023 and have been renamed tribunal des activités économiques. The renamed courts take over the commercial court's existing jurisdiction and add an extended jurisdiction over amicable and insolvency proceedings for economic actors who previously fell outside the commercial courts. Nothing in the experiment changes the analysis above for contentious agency claims. Where the pilot applies, read tribunal des activités économiques wherever this article says commercial court.

Article 48 of the Code of Civil Procedure and its two conditions

The text is short and the drafting is severe. Any clause which, directly or indirectly, departs from the rules of territorial jurisdiction is deemed unwritten unless it has been agreed between persons who have all contracted in the capacity of trader and unless it has been specified in a very apparent manner in the undertaking of the party against whom it is invoked (CPC Art. 48).

Three features of that sentence do the work. The sanction is that the clause is deemed unwritten, not merely voidable, so there is nothing to confirm or ratify. The two conditions are cumulative, so failing either is fatal. And the words directly or indirectly close the obvious escape routes: a clause that fixes an artificial place of payment, or an artificial place of performance, in order to produce the same result as a jurisdiction clause is caught in the same way.

Condition one: all parties contracted as traders

This is where the individual agent's clause dies. The requirement is not that one party be a trader, nor that the contract be commercial in its object. It is that every party to the clause contracted in the capacity of trader. As shown above, the individual commercial agent does not, and courts of appeal have applied that conclusion repeatedly to strike out jurisdiction clauses in agency contracts.

Two qualifications matter. First, the test is the capacity in which the party contracted, so an individual who is registered as a trader for a separate commercial activity and who signed the agency contract in that capacity may fall on the other side of the line. Second, the clause is deemed unwritten only as against the party who is not a trader. It is the agent who benefits from the rule, and it is for him to invoke it.

Condition two: very apparent, and actually accepted

Even between two traders the clause must be specified in a very apparent manner in the undertaking of the party against whom it is invoked. French courts read this strictly. A clause buried in general terms of business on the reverse of an order form, printed in a smaller typeface than the surrounding text, or referred to by cross-reference to a document the counterparty never saw, does not satisfy the requirement. The Court of Cassation also requires that the party against whom the clause is invoked genuinely accepted it, and acceptance is not established simply by the signature of documents that do not draw attention to the clause.

Practically, that means a jurisdiction clause in a French contract should sit in its own numbered article, near the end but not hidden, in bold or capitals, on the page that carries the signatures. Principals that inherit a group standard form and translate it into French without changing its typography frequently lose the clause on this ground alone, even against an agency company.

Subject-matter jurisdiction cannot be contracted for at all

Article 48 governs territorial jurisdiction only. A clause purporting to send the parties to the commercial court where the statutory rules point to the judicial court is attacking subject-matter jurisdiction, which the parties cannot allocate by agreement before a dispute has arisen. The option described above belongs to the non-trader claimant as a matter of public policy, and a contractual term cannot take it away. A clause that reads all disputes shall be submitted to the Commercial Court of Paris therefore has two separate problems against an individual agent, not one.

Can your principal force you into its home court?

Two questions decide whether the jurisdiction clause survives, and what your exposure is if it does.

Cross-border agency: the same clause usually holds

Foreign principals often arrive convinced that French law will strike out their jurisdiction clause. In a purely domestic contract they are frequently right. In a cross-border contract they are usually wrong, and the reversal is complete.

Where the principal is established in one EU Member State and the agent in another, the validity of the jurisdiction agreement is governed not by Article 48 but by the Brussels Ia Regulation (Reg. (EU) No 1215/2012, Art. 25). That provision allows parties, regardless of their domicile, to agree that the courts of a Member State are to have jurisdiction, subject to formal requirements: the agreement must be in writing or evidenced in writing, or in a form which accords with practices the parties have established between themselves, or in international trade in a form which accords with a usage of which the parties were or ought to have been aware. There is no trader condition anywhere in Article 25. The protective regimes that displace party autonomy are confined to insurance, consumer and individual employment contracts, and an independent commercial agent falls into none of them.

Outside the EU the French conflict of laws rules reach the same result. The Court of Cassation has held that clauses extending international jurisdiction are in principle lawful where the dispute is international, provided they do not defeat a mandatory head of French territorial jurisdiction, and that Article 48 does not apply where the change to internal territorial jurisdiction is merely the consequence of choosing a foreign forum (Cass. 1re civ., 17 déc. 1985, n° 84-16.338). The result is that a French individual agent contracting with a foreign principal will normally be held to a clause that would have been worthless had the principal been French.

What makes the contract international

The dividing line is not always obvious, and it is worth pausing on because the whole answer turns on it. A contract is international when it involves the interests of international trade, judged by the connections of the parties, of the contract or of the acts entrusted to the agent with the legal orders of more than one State. A French agent selling French products to French customers for a French principal is not made international by the fact that some end users are abroad. Conversely a contract concluded in France, in French, between a French company and a foreign counterparty, for distribution abroad, has been treated as international. Where the point is arguable, it should be argued first, because it decides which regime applies to the clause.

The default rule when there is no clause

If the cross-border contract contains no valid jurisdiction clause, the special head of jurisdiction for contracts applies. The court for the place in a Member State where, under the contract, the services were provided or should have been provided has jurisdiction (Reg. (EU) No 1215/2012, Art. 7(1)(b)). In a commercial agency contract the agent supplies the characteristic service, so the relevant place is where the agent performed. Where the agent operates in several Member States, the Court of Justice has held that jurisdiction lies with the court for the place of the main provision of services, so that the whole dispute is concentrated before a single court in the interests of predictability (CJEU, 11 March 2010, C-19/09, Wood Floor Solutions).

A French agent with no valid clause against him will therefore ordinarily sue his foreign principal in France, which is the outcome the principal's clause was designed to avoid. That, rather than any theory about mandatory law, is the commercial reason principals in EU agency arrangements care so much about getting the clause right.

Mandatory French agency law is a separate question

Agents frequently argue that because the French agency statute is mandatory, a clause sending the dispute abroad must be void. The argument confuses jurisdiction with applicable law. Articles L 134-1 and following implement the 1986 directive and a number of them, including the termination indemnity, cannot be waived to the agent's detriment (C. com. Art. L 134-16). That is a rule about which law governs the merits, and it is addressed by the case law on mandatory rules and overriding mandatory provisions. The Court of Justice has held that a court of one Member State may set aside the law chosen by the parties in favour of its own law only where it finds in detail that the forum State's legislature went beyond the minimum protection required by the directive when transposing it (CJEU, 17 Oct. 2013, C-184/12, Unamar).

French courts have accepted, in a comparable setting, that a jurisdiction clause designating a foreign court is lawful even though the foreign judge may decline to apply a French overriding mandatory provision (Cass. 1re civ., 22 oct. 2008, n° 07-15.823). The practical lesson for an agent is uncomfortable but clear: attacking the forum with an argument about mandatory law rarely works, and effort is better spent on the formal validity of the clause and on the characterisation of the contract as domestic or international.

A further layer applies in international cases. Where its conditions are met, the Hague Convention of 14 March 1978 on the law applicable to agency governs. It applies universally, without any condition of reciprocity, and may therefore be relied on before French courts including by parties who are neither domiciled in nor nationals of a contracting State (Cass. 1re civ., 4 avr. 2024, n° 21-22.949).

Arbitration clauses are treated differently again

An arbitration clause is not a jurisdiction clause and Article 48 has nothing to say about it. Under the Civil Code an arbitration clause must have been accepted by the party against whom it is invoked, and it cannot be invoked against a party who did not contract in the course of its professional activity (C. civ. Art. 2061). A commercial agent, individual or not, contracts in the course of his professional activity. An arbitration clause in an agency contract is therefore enforceable against him, in domestic as well as international contracts, provided acceptance is established. Principals who want a single forum and are troubled by Article 48 sometimes prefer arbitration for exactly that reason, although the cost of arbitration relative to the sums usually at stake in agency indemnity claims deserves a hard look before that route is chosen.

How to raise or resist a jurisdiction objection in practice

Being right about Article 48 is not enough. A jurisdiction objection is a procedural exception and it is lost if it is raised late, however strong it was.

One more point of sequencing is worth flagging. Because the objection must come first, the agent has to decide very early whether he wants the clause struck out at all. If the named court is convenient, or is a commercial court whose judges are experienced in distribution disputes and whose lists move faster, taking the point may not serve him. Deemed unwritten is a shield he may choose not to raise.

Drafting points for principals and for agents

The rules above are stable and well known to French practitioners, which means the outcome of any given dispute is usually determined at the drafting stage rather than in court.

If you are the principal

Establish the agent's legal form before you sign, and record it. If you want the jurisdiction clause to work in a domestic French contract, contract with an agency company in commercial form. If the agent insists on contracting personally, accept that the clause will not hold and plan the dispute strategy accordingly, including the fact that you will have to sue him in the judicial court of his district. Wherever the clause is intended to work, give it its own article, set it out in bold or capitals on the signature page, and have the agent initial it. Do not rely on incorporation by reference to general conditions. In cross-border contracts, draft the clause to the standard of Article 25 of the Brussels Ia Regulation and keep evidence of the agent's written acceptance.

If you are the agent

Read the signature block on your own contract before you assume anything. If you signed personally and the contract is purely French, the clause naming the principal's home court is very probably deemed unwritten, and you may bring your indemnity claim in your own district under Article 46 of the Code of Civil Procedure. If you signed through your SARL or SAS, or if the contract is cross-border, expect the clause to hold and budget accordingly. In either case, notify your indemnity claim within one year of termination and take advice on jurisdiction before the first procedural step, not after.

Both sides should also resist the temptation to treat the clause as boilerplate at renewal. Agency relationships are often documented once and then rolled forward for a decade, during which the agent may incorporate, the principal may be acquired by a foreign group, or the territory may extend across borders. Each of those events can move the contract from one regime to the other without a word of the clause changing.

Frequently Asked Questions

This article is for general information only and reflects French law as published at the date shown above. It does not constitute legal advice. Always seek qualified advice before acting.