In this 2011 post I considered what information you should include in the introductory clause for entities formed outside the U.S. I’d now like to revisit something reader Vance Koven said in this comment, namely the following:
Also remember that in the civil law tradition place of organization is less important than an entity’s siège social, which means that for some purposes an address, or at least a city, would be needed in the heading.
Readers from civil-law countries, I’d be grateful if you’d elaborate on this.
4 thoughts on “Question for Drafters from Civil-Law Countries Regarding Party Information to Include in the Introductory Clause”
Given that the purpose of the introductory clause is to uniquely identify the parties (unless you also rely on it as a source of the proper address for notices etc.) then for many civil law jurisdictions the unique identifier used in the local version of companies house would suffice. For practical purposes you probably also want to include the name (if for nothing else to make sense of any abbreviations of the parties names).
The reference “entity’s siège social” refers to the private international law determination of the law applicable to that entity. As such, this applicable law would identify the rules on authority to represent the entity (and its internal organisation etc.) In most European jurisdictions the siège social would be the place of the real seat (principal place of business, or HQ); in the Netherlands and England that would instead be the jurisdiction of incorporation. Because cross-border activities are usually not resulting in a new real seat, the discussion on applicable law seems somewhat academic.
It is not crucial to insert such information in the parties block: what is relevant is (i) which entity exactly entered into the agreement, (ii) whether entering into the agreement was ‘done’ by duly authorised representatives (as this may be broadened to other persons under doctrines of the law of agency). In virtually all continental European jurisdictions, all legal entities are registered in a public register (in the Netherlands the Commercial Register at the Chambers of Commerce, in most other countries this is the court’s registrar). Everyone is entitled to rely on the adequacy of the information in those registers (and this functions very well). On the Weagree website, I provided hyperlinks to several of those registers.
In the Netherlands, the registration number (or the number of incorporation) is determinative for the entity’s identity, since a legal entity can change its name into the old one of another company or into the name of a company that does not exist anymore. That could (in rare cases) lead to confusion or some legal uncertainty. It is not common to include such information in the parties block of an agreement.
Some countries require for certain agreements or documents that a tax number is included: in Spain, it would be prohibited for persons to represent a Spanish company without such number.
In my book Drafting Contracts (on the Weagree website as well), I explain that it is helpful to include all such information about a company as is required to serve a writ of summons against it.
Willem: A belated thank-you for this. Ken
In Mexico, we have a national database before the Foreign Affairs Ministry to avoid repetition of names. We also have the Public Regisitry of Commerce (mainly so a third party can check the status of a company) and the Tax registration code. However, we just add in the recitals place of incorporation to make sure if we are dealing with a US company, Argentinian or Mexican. Mexican commercial companies are regulated under federal law, so we don’t really care where in the country is the siege social (which is the place of incorporation but the by-laws may later be ammended to another state).