Commercial Agency Contracts in Tunisia

Tunisia does not have a single statute exclusively dedicated to commercial agency. Instead, agency contracts fall under the general mandate provisions in the Code of Obligations and Contracts (COC), especially Articles 1104 - 1171, as well as Articles 625 - 626 of the Code of Commerce. The arrangement is considered “commercial” when the agent acts regularly on behalf of a merchant or producer. There is no specialized “commercial agency law,” but the courts and the COC treat such agency as a contract of mutual interest, providing certain protections - particularly regarding termination.

A commercial agent in Tunisia acts in the name and on behalf of the principal, under a continuous relationship, promoting or concluding sales (or other commercial transactions) regularly. A distributor, in contrast, buys goods on its own account and resells, and does not enjoy the statutory protections that apply to agents. Occasional brokers who merely introduce clients on a one-off basis do not qualify for commercial agency protections, because the law requires a certain permanency and regularity for the agent’s status.

Any party (local or foreign) with legal capacity can be appointed as an agent in Tunisia. The law does not require a written form for validity, but it is strongly recommended (best practice) to draft a written contract to define scope, commission, etc. If the agent regularly conducts commercial acts, they generally must register in the Registre du Commerce as a commerçant (business operator). No special “public register” for agents exists, and no nationality restrictions apply.

There is no automatic exclusivity under Tunisian law. The parties can agree on an exclusive territory or client list. If exclusivity is stipulated, the principal usually cannot appoint other agents or make direct sales that undercut the agent’s efforts in that zone. However, exclusivity is entirely contractual; Tunisian law does not impose it by default.

In Tunisia, if the agent has contractual exclusivity or a clause entitling them to commission on all sales in a defined territory (including those concluded directly by the principal), the agent might claim commissions. If the contract does not cover these scenarios, the agent would not automatically be entitled to commission on online sales.

During the contract, the agent must not represent competing principals without the principal’s consent (a duty of loyalty). Post-termination, Tunisian law does not fix a statutory limit. Such a clause is enforceable if it is reasonable in scope, duration, and geographical area. The courts look for proportionality so as not to violate the agent’s right to work. Overly broad or indefinite post-contract non-competes risk being invalidated.

If the agent operates primarily in Tunisia, Tunisian courts consider local law and mandatory rules to be public policy. A foreign governing law clause might be overridden if it deprives the agent of local protections, although parties are free to include a choice-of-law clause. Practically, where the agent is established in Tunisia, the protective provisions derived from the COC and Code de Commerce typically apply.

Parties can include arbitration or choose a foreign court/forum. Tunisia is a signatory to the New York Convention, so foreign arbitral awards are generally recognized. However, if the agent is in Tunisia, local courts sometimes retain jurisdiction to protect what they view as mandatory rights of the agent.

Tunisia generally recognizes arbitral awards under the New York Convention as well as foreign judgments, especially if reciprocity is given. Local courts can refuse enforcement if the order contravenes Tunisian public policy (such as mandatory agent protections).

Fixed-term contracts end upon the expiry unless renewed. Early termination requires a serious fault or a contract clause allowing it. Indefinite-term contracts can be terminated by either party with reasonable notice, based on usage or contract clauses (Art. 626, Code de Commerce). No specific statutory minimum period, but abrupt termination without a customary or contractually defined notice can be deemed abusive.

The law references “fault” or serious misconduct (faute grave) to justify immediate termination without notice. Tunisian courts typically require a significant breach of the mandate (like dishonesty or major neglect of duties). Failure to meet sales targets is not per se considered a “just cause.” Typically, it must be shown that the agent’s conduct was seriously damaging or violated core obligations, not merely an underperformance issue.

Tunisia does not have an explicit statutory “goodwill indemnity.” However, courts often award damages for abusive or bad-faith termination, especially in long-term relationships, effectively merging the concept of goodwill indemnity with civil liability. In practice, courts may grant compensation roughly equal to two years of the agent’s commissions if the principal unfairly ends the contract (particularly in indefinite-term agencies). If the agent is at fault or the agent resigns unjustifiably, no indemnity is awarded.