ICC Model Occasional Intermediary Contract (NCND)

What are the main features of this model? 

An international business transaction requires a precise and detailed underlying contract. However, it can be expensive and time-consuming to draft such a contract oneself. The ICC Model Occasional Intermediary Contract (NCND) responds to the market’s need for a reliable and equitable template, providing a set of clear and concise standard provisions relating to non-circumvention/non-disclosure obligations. 

The model provides a unique and balanced legal platform covering the most common varieties of international contracts under which an international intermediary undertakes to provide certain services (e.g., communication of potential customers’ names, promotion of business), and in connection with such services seeks protection against the risk of being “circumvented” by the other party (and, consequently, not being paid for its services). It takes into account the interests of all parties involved in a non-circumvention and non-disclosure agreement with the aim of minimizing the risks of fraud and misunderstanding.  

The model has certain conceptual links with the ICC Model Commercial Agency Contract and users may wonder which of the two models to choose. Both the occasional intermediary and the commercial agent act as a middle-person, i.e., they promote the conclusion of contracts between a principal and a third party (in contrast to a distributor, who acts in its own name and for its own account as buyer-reseller).  

However, while the agent undertakes to actively and continuously promote business within the territory or toward a group of customers for which it is responsible, the occasional intermediary has in principle no such obligation: it may agree to promote a specific business or to inform the counterpart about business which may come to its notice, without any continuing obligation to develop the market.  

Moreover, the activity of an occasional intermediary may be limited to the simple supply of information about a possible business (names of potential customers, indication of a particular deal, etc.), while the commercial agent’s activity comprises necessarily the negotiation of contracts (in view of collecting orders) on behalf of the principal. In case of doubt (e.g., when the intermediary, although not contractually bound to develop the market, in fact appears to promote business on a continuing basis), parties should check whether the rules on commercial agents (which in many countries have mandatory character) are applicable, in which case the agency model may be preferable.