Mediation as an instrument to solve conflicts in compliance related issues and international contracts

9 Aprile 2025

  • Mediazione
  • Arbitrato
  • Contenzioso

Summary: Companies with international projection and global presence can count on mediation and its benefits in the different contexts of their business, both in the compliance of the code of conduct and internal rules as well as in the compliance of contracts and projects with third parties or public authorities. In the same way, it facilitates access to a saturated justice system, while at the same time improving the relationship between the parties, as they do not have to face the wear and tear of the judicial phase, which leads to emotional wear and tear.

I will focus on the intersection between compliance and mediation, as international corporations are increasingly interested in the potential of Mediation applied to compliance frameworks. Although there are a few important challenges that we need to mention, the benefits of international mediation are clear: costs savings, quick solutions and a good understanding between the parties. International mediation and compliance go hand in hand and, although they may not seem to have much in common, they complement each other. The purpose of this article is to illustrate with some practical examples the advantages of compliance mediation for small and medium-sized enterprises operating internationally, in order to demonstrate the potential that exists in this combination.

Mediation is a form of alternative dispute resolution (ADR) that involves the intervention of a neutral third party, known as the mediator, to help disputing parties reach a mutually acceptable agreement. Unlike litigation, which involves a judge making a binding decision, mediation allows the parties to control the outcome, facilitating a more collaborative and flexible approach to resolving disputes.

In the context of compliance issues and international contracts, mediation offers a unique advantage by addressing both legal and non-legal aspects of disputes, such as cultural differences, business practices, and organizational relationships. This flexibility is particularly important when dealing with international contracts, where cross-cultural understanding and respect for diverse legal systems are essential.

The key is still the same recipe as the initial negotiation of a contract. The parties objectively and in a neutral atmosphere and collaborative approach, find ‘solutions’ to their disagreements where both parties win. The so-called win-win is still the best scenario in which the parties should meet again in dispute resolution. I always insist on the word ‘reconnect’ because of its positive connotation in any relationship. Mediation allows the parties to negotiate a mutually acceptable outcome, preserving the relationship between them, with the additional value of cost and time efficiencies and confidentiality guaranteed throughout the process.

Mediation benefits compliance programmes in two keyways.

Resolving internal compliance issues

This is accomplished through facilitating communication and conflict resolution among employees, promoting a culture of dialogue, transparency and accountability. When a company uses mediation to resolve conflicts arising from internal compliance-related situations, it helps to prevent a conflict from escalating in proportions both in the form of legal action and disputes that may involve the public administration.

A clear example is conflicts related to the code of conduct, where disputes often arise at the HR level. Another example is that arising from conflicts of interest. In both cases the connection lies in the common goal of promoting ethical behaviour, improving communication and resolving conflicts in a way that helps the employee and the company to follow its internal rules and achieve the required standards.

Mediation opens a space for dialogue and amicable conflict resolution, facilitating employees’ professional and personal growth in a sustained way over time.

Another example can be conflicts related to cross-border labour issues applicable to the same company, whether private, non-governmental organisation or conflicts between private and public companies. The reasons for the conflict may be related to harassment issues or pay inequality issues. For example, the internal pay system within an international organisation should consider the following elements:

  • Remuneration represents by far the most important and controversial element of the employment relationship and is of equal interest to the employer and the employee.
  • The remuneration system should be based on and consistent with the principles of the organisation.
  • The criteria for determining remuneration should be objective and measurable.
  • The system should be equitable.

Conflicts often arise around these elements and companies should be transparent, through comprehensive policies, about their position on non-discrimination, harassment or inclusion of their employees within their organisation and the markets in which they operate.

Mediation can be a channel to help find solutions to equality and non-discrimination issues between employees within the same organisation. It also obliges companies to consider the standards of international legislation (e.g. CSRD) when implementing their policies. We are seeing that it is not a ‘nice to have’ but a ‘must have’.

Resolving disputes with external parties

Mediation can be used to enforce commercial contracts or in projects. It helps prevent disputes between companies or between companies and regulators, foster better relations, and ensure compliance standards are met without resorting to litigation. Mediation promotes cooperation between the parties and helps reduce the risk of future contractual violations.

A clear example of the benefits of the use of mediation in compliance arises in the international context where legal certainty is required for both parties, as well as fair and reasonable management of a long-term project. In some cases, there is a public-private element to the dispute as the public sector is involved (either in licensing issues or as a regulatory authority). This may create some confusion in the roles and rights of the parties, which makes perfect sense when the interests of the investor (private equity) and the community or private parties are very diverse.

For context, we might think of environmental, social and governance issues that are receiving serious attention from governments and regulators, given the impact on the planet and the people within the communities where they live. Mediation offers a way to resolve these conflicts by facilitating open communication between the parties involved. For instance, if a company is accused of breaching a country’s environmental regulations, mediation can provide a platform for the company and regulatory authorities to discuss the issues, share concerns, and negotiate a solution that satisfies both parties. Instead of pursuing punitive measures or resorting to lengthy legal battles, mediation can help parties find common ground and craft a solution that supports compliance while preserving business relationships.

A concrete example is mining activities, which contribute greatly to the involvement of foreign entities in resource-rich countries, involving, on a large scale, both foreign and domestic interests, and potentially resulting in pollution and damage to the environment. In addition, there are various problems, especially the use of land for mining activities, which causes friction between mining companies, communities and local governments where mining activities take place. Since these projects take place over a long period of time and involve various interests of both private and public actors as well as communities, mediation is undoubtedly a good way to prevent disputes during the whole process of project development and implementation, offering in conflict situations not only a quick solution for both parties but also a fair and reasonable management of a project in the long term.

Another tool, with elements of mediation, which is recommended for the successful completion of large projects, as for instance construction projects, are Dispute Boards, a panel of one to three members with extensive experience in the field of the contract, who accompany the execution of the contract until the work is completed on time and on budget. This method is not a pure and simple mediation, although it resembles it, because the Dispute Boards, in particular the so-called DAAB (Dispute Avoidance and Adjudication Board), permanently seek to avoid conflict and, if it arises, to encourage the parties to find a solution or to make it binding. I will go into more detail on this subject in another article.

Hereby, we can also mention internal control and auditability towards third parties, be they customers or suppliers. The EU directive (CSDDD) puts the emphasis on indirect suppliers in the supply chain. It is therefore important that when establishing a business or investment partnership, all parties involved have a similar level of compliance with standards. In this regard, framework compliance agreements, which are compliance agreements that regulate the compliance obligations of both parties’ subject to a service contract, are very common.

Aspects of compliance in such contracts may include, among others, anti-corruption policy, fee evasion, international sanctions, trainings, reporting requirements and ways to audit the compliance clauses agreed in the service contract, as well as the escalation clause to resolve disputes amicably, using the various existing ADR modes.

In the context of commercial contracts, mediation is used to resolve disputes related to non-performance, late deliveries, payment problems, interpretations of clauses or any other dispute arising from a commercial agreement, including any aspect of the compliance agreement as referred to above.

For an internationally developing company it would be advisable to promote mediation as the type of dispute resolution in conflicts with third parties. One way to promote mediation as an effective means of dispute resolution could be through a clause of voluntary submission to mediation in all transactions with third parties, followed by arbitration or submission to the courts of a certain jurisdiction, known as a tiered dispute resolution clause. These clauses provide for a gradual system of dispute resolution following various alternative methods of resolving disputes, usually culminating in arbitration if the outcome of the first alternative methods is unsuccessful.

The choice of conflict resolution through mediation is a ‘win-win solution’, whose confidentiality is guaranteed in the face of public attention. Based on these advantages, mediation is considered more suitable to be implemented (agreed, including with the escalation clause) in a contract.

Challenges of Mediation in International Contract Disputes

Despite its many advantages, mediation is not without its challenges. Some of the key obstacles include:

Lack of Enforcement Mechanisms: Mediation agreements are typically non-binding, meaning that parties are not legally required to adhere to the terms of the settlement. While mediation can result in a mutually agreed-upon solution, enforcing the agreement may require the parties to enter into further negotiations or even resort to litigation if one side fails to honour the agreement.

Cultural and Language Barriers: In international contract disputes, cultural differences and language barriers can complicate the mediation process. It is important to select mediators who have experience with cross-cultural communication and who understand the legal systems involved. Without such expertise, the mediation process may be ineffective.

Reluctance to Mediate: Some parties may be reluctant to mediate, especially if they perceive it as a sign of weakness or if they are unfamiliar with the process. This reluctance can be overcome with proper education and a clear understanding of the benefits of mediation.

Although we can say that there is a growth of mediation around the world and the level of satisfaction of the use of mediation is based on its core values, which are impartiality, confidentiality and self-determination, the promotion of the mediation is still an important challenge.

Conclusion

In the case of internal compliance, mediation usually takes a more reactive role, i.e. when the conflict has already surfaced within the company or organisation; whereas, in the case of third party compliance, mediation takes a preventive role, such as in the case of Dispute Boards, although it also helps to resolve a commercial conflict between parties who wish to continue to maintain a business relationship. In both cases the objective is the same, to try to find common ground between the interests of the parties in order to resolve or avoid a conflict that could lead the parties to a legal dispute.

As international trade continues to grow and the complexity of global regulations increases, businesses and organizations can benefit from adopting mediation as a strategic method for resolving conflicts. By fostering cooperation and understanding, mediation can help build stronger, more resilient business relationships and ensure long-term success in a global marketplace.

Companies need to adhere to their own compliance programmes, but also to the programme of their customers, suppliers or banks with whom they collaborate. Not only is there a need for expertise to know the legal framework applicable to the industry, but there is also a need for conflict resolution when conflicts arise or even to act pre-emptively. Legal battles are expensive, time-consuming and damaging to business relationships. Many jurisdictions and industries are already demanding an obligation for parties to exhaust alternative dispute resolution methods before moving to the litigation phase.

The year 2025 marks a milestone in the Administration of Justice in Spain with the publication of Organic Law 1/2025 of 2 January on measures to improve the efficiency of the Public Justice Service, which introduces important measures to modernise the judicial system.

Among these, the compulsory use of Appropriate Means of Dispute Resolution (ADR) as a prerequisite for initiating civil proceedings stands out. This change aims to improve the efficiency of the judicial system and encourage consensual solutions between the parties. The Law will enter into force on 3 April 2025.

In this preliminary post, we will explore what this novelty entails, the types of ADR envisaged, their characteristics and the consequences of their implementation.

What are Alternative Dispute Resolution (ADR)?

ADR are mechanisms that allow parties to resolve disputes out of court, either through direct negotiations or with the help of a neutral third party. These means include options such as mediation, conciliation, independent expert opinion, collaborative law, confidential binding offer and other legally recognised tools.

The main objective of ADR is to reduce the workload of the courts and to offer citizens a faster, more efficient, and personalized alternative for resolving their disputes. It also seeks to promote a settlement culture, fostering more harmonious relations between the parties involved.

ADR as a procedural requirement

One of the most innovative aspects of the new law is that it makes it mandatory to attempt to resolve disputes through ADR before filing a lawsuit in civil matters. This means that, for a claim to be admissible, the parties must demonstrate that they have attempted prior negotiation activity, whether through mediation, conciliation, or any other recognised ADR.
However, there are exceptions. This requirement is waived in cases involving:

  • Fundamental rights,
  • Urgent measures concerning minors,
  • Disputes relating to filiation, paternity or maternity,
  • Support measures for persons with disabilities,
  • Proceedings for negotiable instruments,
  • When one of the parties is a public sector entity, among others.

This obligation applies to declaratory proceedings in Book II and special proceedings in Book IV of the Civil Procedure Act, but does not include enforceable claims or requests for precautionary measures or preliminary proceedings.

Types of ADR recognized

The law identifies several types of ADR that meet the procedural requirement:

  • Mediation: A neutral third party assists the parties to dialogue and reach an agreement.
  • Conciliation: An impartial professional suggests possible solutions to the conflict
  • Confidential binding offer: Any person who makes a confidential binding offer to settle a dispute.
  • Independent expert opinion: A specialist evaluates the case and offers a recommendation.
  • Collaborative law: Lawyers from both sides work together to find a solution without going to court.
  • Other mechanisms: Any negotiating activity recognised by law, such as direct agreements between lawyers for the parties.

Key characteristics of ADR

  • Voluntariness and good faith: Although the attempt to negotiate is mandatory, the parties are not obliged to reach an agreement
  • Confidentiality: Everything discussed during the process is confidential and cannot be used in a possible trial, except, inter alia, by express written waiver of the parties.
  • Suspension of deadlines: The initiation of an ADR interrupts the statute of limitations or suspends the expiration of legal actions.
  • Flexibility: The parties can choose the ADR that best suits their needs.

Procedure and consequences of non-compliance

To prove that an ADR has been attempted, the parties must provide documentation demonstrating the negotiation effort, such as signed minutes or, if there is no agreement, a certification issued by the mediator, conciliator or expert. If this requirement is not met, the claim may be inadmissible.

In the event that the negotiation process ends without agreement, the parties may go to court, but the attitude of the parties during the negotiation may influence decisions on procedural costs or possible sanctions for abuse of the judicial system.

Advantages of ADR

The introduction of ADR as a prerequisite to litigation can offer multiple benefits:

  • Judicial decongestion: It reduces the workload of the courts, allowing for a more streamlined resolution of cases
  • Lower costs: ADR is often less expensive than a full court process
  • Faster: Many disputes can be resolved in weeks rather than months or years.
  • Tailored solutions: Settlements can be better tailored to the needs of the parties.
  • Preservation of relationships: They foster dialogue and understanding, reducing conflict between parties.

Criticisms and challenges

Despite its advantages, the implementation of ADR is not without its challenges:

  • Lack of knowledge: Many people do not know what ADR is and how it works.
  • Mistrust: Some citizens may perceive them as an additional obstacle to accessing justice.
  • Training: It is essential to train professionals who will act as mediators, conciliators and experts.
  • Initial costs: Although cheaper in the long run, the fees of the professionals involved may be a barrier for some users.

Conclusion

The introduction of ADR as a procedural requirement in the civil sphere represents a significant change in the Spanish judicial system. This measure seeks not only to streamline dispute resolution but also to foster a culture of settlement that benefits the parties and society.

Although the transition to this new model may face certain obstacles, the long-term benefits promise a judicial system that is more efficient, accessible, and adapted to the needs of the 21st century. In this sense, ADR is a tool for resolving disputes and a step towards a more humane and sustainable justice system.

PFAS are chemicals that have been used in industry for over 50 years. Between 4,000 and 5,000 varieties are used for various everyday consumer applications, and they are renowned for their non-stick, waterproofing, and heat-resistant properties. They have come under scrutiny in recent years, and are covered by European regulations, as they are in the USA, where the public authorities have imposed maximum use values, as well as reporting obligations. EU Regulation 2019/1021 (POP) restricts the production and use of certain categories of PFAS in specific industries or above certain values and their use with food products. France has gone further, regulating the levels of discharges into watercourses.

Scientific research suspects that PFAS cause illnesses such as cancer and reproductive disorders. Given the extent of contamination not only in everyday products but also in the environment, particularly waterways, the issue is likely to pose major public health problems in the years to come. This concern is more pressing given that PFASs are considered ‘eternal pollutants’, as there is currently no way of eliminating them from the environment.

The impact on companies’ and insurers’ liability is already significant. In the USA, more than 6,000 lawsuits have been filed since 2005. Three groups have already paid more than USD 1.2 billion in settlements due to contamination, and another group has paid more than USD 10 billion to end a class action.

In France, the Metropole of Lyon has brought a summary expert appraisal action against two chemical companies before considering bringing a liability action.  In addition, several criminal complaints have been lodged for endangering the lives of others and damaging the environment.

Under French law, companies and their insurers could be liable on various legal grounds. In addition to ordinary civil liability law – based on article 1240 of the Civil Code – the special system of liability for defective products could also serve as a basis for a liability action (articles 1245 et seq. of the Civil Code), with French law defining a defect as any product that does not offer the safety that can legitimately be expected.

Although it is currently difficult to identify a causal link with an identified disease, asbestos-related case law has shown in the past that victims can take action if they can demonstrate that they suffered anxiety-related harm as a result of their exposure to the product, even if they are not positively suffering from a disease at the time of their claim.

In addition, the reporting obligations imposed by the public authorities will undoubtedly facilitate the filing of liability actions by facilitating the identification of the emitters and users of these pollutants.

Insurers are directly affected by this phenomenon, which for them constitutes an “emerging” risk (“silent cover”) because, for the most part, this risk was not identified when the policy was taken out, which exposes them directly and is all the more problematic because insurance premiums have not been able to take such a risk into account.

Civil liability or professional indemnity insurance policies, especially if they are drafted with “all risks except” clauses (“tous risques sauf” in French legal vocabulary, i.e. covering all liability risks vis-à-vis third parties except those strictly listed), as well as those including clauses relating to environmental risks, are particularly targeted.

Lloyd’s has already published model exclusion clauses for the attention of insurers, although such clauses can obviously only cover future insurance contracts or endorsements:

https://www.lmalloyds.com/LMA_Bulletins/LMA23-039-SD.aspx

The clauses contained in insurance policies must be drafted with particular care, considering each country’s specific features. In France, for example, to be enforceable against the insured, clauses must be “formal and limited”, which means that the exclusion must be both clearly expressed and that it must be possible to determine its content perfectly.

For example, the Court of Cassation recently ruled that the use of the terms “such as” or “in particular” (“tells que” “en particulier”) in an exclusion clause led to confusion in the interpretation of the exclusion clause, rendering it invalid (Civ. 2e, 26 Nov. 2020, no. 19-16.435).  There was also a debate on the validity of an exclusion clause relating to bodily injury caused by asbestos, a risk which at the time had not been identified by insurers, who subsequently excluded it from most policies (Cass. 2e civ., 21 Sept. 2023, nos. 21-19801 and 21-19776). Similarly, policies should clearly indicate whether cover is provided based on a harmful event or based on a claim (i.e “base dommage” or “base reclamation”, which indicates if the risk is covered, depending on if the damage happened during the policy was valid, or if it depends on the moment when the risk was notified by the insured during such period).

One thing is sure: the risks associated with PFAS and claims are only just beginning to emerge in Europe, where the conditions for group actions have recently been extended with EU Directive 2020/1828, which came into force on 25 June 2023 and is currently the subject of a draft law under discussion in the French Parliament with a view to its transposition.

Dealing with unpaid invoices can be challenging for any business. In Belgium, where judicial processes can seem daunting, understanding how to manage debt collection effectively is crucial. This article offers practical guidance derived from a comprehensive legal guide to help your company navigate Belgium’s judicial debt recovery landscape.

Understanding Your Options

Assess the Situation: Before taking legal action, evaluating the amount owed and the debtor’s financial status is essential. This assessment will guide you in choosing the appropriate legal avenue, as Belgium offers different courts and procedures based on the dispute’s value. For instance, for claims up to € 5,000, the local court or ‘justice de paix’, which is a court of first instance for minor civil cases, is typically used due to its cost-effectiveness and efficiency.

Send a Notice of Default: Under Belgian law, a notice of default is mandatory before initiating legal proceedings. This step adheres to legal requirements and gives the debtor one last chance to settle their dues without further legal complications.

Efficient Legal Procedures

Use Simplified Procedures for Small Amounts: A simplified legal procedure can be utilized for undisputed money debts up to €1,860, which expedites the payment request process significantly. This approach can be particularly advantageous for recovering smaller debts quickly.

Consider Direct Bailiff Intervention: For undisputed amounts, irrespective of their size, between companies, creditors can authorize a bailiff to recover the debt directly without a court judgment. This procedure reduces legal fees and speeds up the debt collection process.

Leveraging Legal and Financial Advice

Consult with a Belgian Attorney: Navigating the Belgian legal system can be complex. Consulting with a local attorney can provide insights into the most effective procedures tailored to your case. This is especially true for international debt collection, where regulations and guidelines vary significantly.

Prepare Necessary Documentation: Ensure you have all necessary documents, such as contracts, invoices, and payment records, organized. These documents are essential to support your claim, whether you are dealing with local or international debt recovery.

After Initiating Debt Recovery

Use Interim Measures: If immediate action is needed, interim measures like seizing bank accounts or assets may be applicable. These measures, which are temporary and can be requested even before legal proceedings, can ensure that the debtor’s assets are secured while the legal process unfolds.

Conclusion

Recovering debts through judicial means in Belgium requires understanding the legal landscape and an appropriate strategy based on the debt’s nature and amount. While this article provides practical guidance, it is important to note that each case is unique, and professional legal advice is recommended for complex debt recovery cases. Businesses can enhance their chances of successful debt recovery while maintaining financial stability by utilizing simplified procedures for smaller or undisputed debts and consulting with legal experts. This proactive approach ensures that your business can continue to thrive even in the face of financial adversity.

“Può aiutami, avvocato”?

(Ovviamente è urgente).

“Mi mette in contatto con un legale in [Paese straniero]? Poi ci pensiamo noi.”

Lo faccio volentieri, ci mancherebbe.

Specie se posso mettere il cliente in contatto con un avvocato esperto di Legalmondo.

Lavorare direttamente con un legale all’estero, però, comporta una serie di complessità che vengono regolarmente sottovalutate dal cliente.

Le principali sono le seguenti

  • identificare il legale giusto, che sia specializzato e abbia una specifica esperienza nella materia di interesse dell’azienda
  • la difficoltà di dialogare in una lingua che solitamente è straniera sia per il cliente, sia per il legale all’estero
  • comprendere le tematiche giuridiche oggetto dell’incarico, molto spesso regolate da una legge diversa da quella italiana
  • concordare i termini dell’incarico professionale e monitorare l’andamento delle spese, specie se si tratta di attività lunghe e complesse, in paesi nei quali i costi legali sono molto alti

Nel caso di contenziosi

  • individuare i fatti importanti e i documenti necessari
  • definire la strategia di causa, valutare la possibilità di una definizione amichevole della vertenza e ragionare sulle possibili soluzioni alternative in base agli interessi delle parti
  • gestire istruzioni e comunicazioni al legale in tempi molto stretti e lavorando in fusi orari diversi

Nel caso di negoziati commerciali

  • condividere interessi e obiettivi della trattativa
  • preparare e partecipare a call conference frequenti ed impegnative
  • seguire le varie fasi delle revisioni dei testi contrattuali

Se si tratta di operazioni straordinarie

  • impostare l’attività e condividerla con i legali delle controparti
  • allineare le risorse aziendali e i vari professionisti coinvolti per assistere il cliente
  • coordinare le diverse fasi dell’attività

Tutti passaggi nei quali il legale italiano, se è specializzato nella materia ed ha esperienza nell’assistere la clientela all’estero, può essere di grande aiuto, diventando l’interfaccia tra il cliente e i vari professionisti coinvolti nell’attività, su entrambi i lati.

È una risorsa preziosa, che consente di impostare il lavoro in modo chiaro, dialogare e ottenere risposte in tempi rapidi, assicurarsi che le informazioni, anche complesse, vengano riportate e comprese in modo corretto.

Esperienza, facilità di dialogo e rapporto di fiducia

Infine, è importante valorizzare la possibilità di confronto diretto con una persona di fiducia, esperta e che conosce l’imprenditore e l’azienda, cosa che generalmente non è possibile lavorando direttamente con uno studio all’estero, specie se di grandi dimensioni.

Il risultato è generalmente quello di lavorare in modo più consapevole, rapido, ordinato ed efficace, il che si traduce generalmente in un risparmio di tempo e denaro.

Prima di lavorare direttamente con un legale in Costa Rica, Macedonia o USA, è bene considerare l’importanza e il valore dell’incarico e pensare al legale italiano come una risorsa, non come un costo aggiuntivo.

Perché è importante

La clausola di scelta delle modalità di risoluzione delle controversie in un contratto internazionale è conosciuta dagli addetti ai lavori come la “Midnight Clause”, perché è generalmente situata tra gli ultimi patti dell’accordo e viene spesso discussa alla fine di una trattativa, magari a notte fonda, dopo avere concordato tutto il resto del contratto.

  • E a tarda notte, stanchi e con poca conoscenza di questo argomento, c’è il rischio che le parti commettano errori gravi, che possono compromettere la possibilità di gestire il contenzioso in modo corretto e con tempi e costi ragionevoli.

Si tratta, infatti, di un patto complicato, perché non esiste una regola standard per tutti i contratti e per tutti i paesi e un errore si può pagare (letteralmente) a caro prezzo.

  • Un errore frequente, in particolare, è quello di insistere per ottenere la giurisdizione e la legge applicabile italiana, anche in casi in cui questa scelta si può rivelare un autogol, come in contratti con controparti operanti in Cina o negli USA.
  • Un altro sbaglio è quello di affidarsi alla giurisdizione statale, quando per la tipologia di contratto e/o per il paese in cui andrà eseguito l’accordo sarebbe più efficace rivolgersi, se necessario, ad un arbitrato. E’ il caso, ad esempio, di accordi commerciali da adempiere negli USA.

👉 Approfondimenti

Video: Vedi qui il secondo episodio della serie Dispute Resolution Talks, con Antonio Valla e Lisa Schachne, in cui parliamo di arbitrato in California.

Long form: La clausola di scelta del foro: giudice italiano o straniero? Vai all’articolo

What do the mythical Vega Sicilia wines, El Cid Campeador and the abuse of rights have in common? If you read on, you will find out.

The Vega Sicilia Único was for many years considered the best, the most prestigious and the most expensive Spanish wine.

The abuse of rights is a legal institute that allows the defense of situations in which the opponent acts with (apparent and formal) subjection to the law, but making a spurious use of the law with the intention of harming the injured party.

Last October, the Supreme Court handed down a judgment declaring certain agreements adopted by Bodegas Vega Sicilia S.A., producer of Vega Sicilia Único wine, to be null and void based on the principle of abuse of rights.

The judgment in question is doubly interesting.

Firstly, because it highlights the endemic evil of Spanish justice: it declares the nullity of resolutions adopted at a meeting held in March 2013, which were the subject of a lawsuit in February 2014, with a first instance ruling that same year, appealed to the Provincial Court of Valladolid who issued its judgement on 2019  and  four years later the Supreme Court has put an end to the lawsuit: nine years after the shareholders meeting whose resolutions were the subject of the challenge.

As the Constitutional Court very recently reiterated in its ruling dated last October, “judicial slowness has no place in the Magna Carta”. But, although it has no place, or should not have a place, our courts continue to insist that it does and, as an example, this case that we are commenting on is, unfortunately, no exception.

Beyond the barbarity of a litigant having to wait for nine years to find a final solution to his claim, the judgment we are commenting on is of interest for other reasons.

The plaintiffs sought the nullity of certain resolutions adopted at a shareholders’ meeting, basing their claim on the fact that these resolutions constituted an abuse of rights since, through them, the shareholders of Bodegas Vega Sicilia S.A. sought to take control of Bodegas Vega Sicilia away from the company of which the plaintiffs were in turn shareholders.

The legislation in force at the time the meeting was held (prior to the 2014 reform) established that “resolutions that are contrary to the law, oppose the articles of association or harm the corporate interest to the benefit of one or more shareholders or third parties” could be challenged, adding that those contrary to the law would be null and void and the remaining resolutions could be annulled.

Following the 2014 reform, article 204 considers that “corporate resolutions that are contrary to the law, are contrary to the articles of association or the regulations of the company meeting or harm the corporate interest to the benefit of one or more shareholders or third parties” can be challenged and no longer distinguishes between null and voidable resolutions; although it partially recovers the concept of radical nullity in the case of resolutions contrary to public order by establishing that in such cases the action does not have a statute of limitations or lapse.

But both with the regulations prior to the reform and with those currently in force, the controversy resolved by the ruling we are commenting on is the same: when the legislator requires the agreement to be contrary to “law” in order to be able to challenge it, does he mean that it contravenes a precept of the Capital Companies Act (LSC), or can it be considered a requirement for challengeability if it contravenes any other positive precept of any other legal text? And finally, if the resolution in question is classified as constituting an “abuse of rights”, can such a situation be considered as “contrary to law” for the purposes of the application of article 204 LSC?

The Chamber reminds us of the requirements for the concurrence of abuse of rights in corporate matters:

  • formal or outwardly correct use of a right
  • causing damage to an interest not protected by a specific legal prerogative, and
  • the immorality or antisociality (sic) of that conduct manifested subjectively (intention to damage or absence of legitimate interest) or objectively (abnormal exercise of the right contrary to the economic and social purposes of the same).

And it then refers to the numerous occasions on which its case law has reiterated that, although the regulation on challenging corporate resolutions does not expressly mention abuse of rights, this is no obstacle to annulling resolutions in such cases, since according to article 7 of the Civil Code (which prohibits abuse of rights), they must be deemed as contrary to the law.

The interest and peculiarity of this case lies in the fact that the contested resolutions were neither adopted in the interests of the company nor did they cause any harm to it, since the alleged harm was caused to a third party formally outside the company.

And on these premises, the Supreme Court reiterates and insists that the expression “contrary to the law” in article 204 LSC must be understood as “contrary to the legal system”, which includes those agreements adopted in fraud of the law, in bad faith or with abuse of rights, all of which are included and regulated in the Preliminary Title of the Civil Code. For these reasons, the judgment of the Provincial Court upholds the claim and declares the nullity of the contested agreements.

And what has El Cid got to do with all this? Is it a typo? No, not at all. Legend has it (invented, it seems, by a monk of the monastery of San Pedro de Cardeña to attract visitors) that Rodrigo Diaz de Vivar won a battle on the walls of Valencia against the Almoravids, after his death, saddling his corpse on his legendary horse Babieca.

It turns out that his almost fellow countryman, David Alvarez, buyer of the winery in the 1980s, the latter from León, the former from Burgos, but both old Castilians, also won his last battle after his death; David Alvarez was, together with one of his daughters, a plaintiff against the agreements of Bodegas Vega Sicilia and died in 2015; seven years later the Supreme Court has given him the right against the Almogavars, in this case, his own children.

And two lessons: first, justice is not justice if it is slow, a phrase apocryphally attributed to Seneca; it was not in this case for David Alvarez. Secondly, the abuse of rights is not only an “in extremis” recourse when one does not find frank legal support for one’s claims; on the contrary, it is, on many occasions, the solution.

Ogni datore di lavoro dovrebbe gestire il rischio di essere coinvolto in azioni legali promosse dai propri dipendenti.  Molte imprese credono di trattare bene i dipendenti e che gli stessi siano felici.  Di conseguenza, ritengono di non essere a rischio di controversie.  Nel mio lavoro, però, mi capita spesso di vedere i rapporti di lavoro inacidirsi e i dipendenti sorprendere la direzione rivolgendosi ad un avvocato.

I datori di lavoro dovrebbero gestire questo rischio in modo proattivo, invece di sperare che le cause legali non arrivino mai.  Difendere un’azienda dalle cause intentate da un attuale o ex dipendente richiede molto tempo e può essere molto costoso.  Può anche essere incredibilmente frustrante vedere un dipendente di cui l’azienda si fidava fare accuse false e dannose.  Tuttavia, i datori di lavoro possono adottare alcune misure preventive per ridurre l’impatto di un’azione legale: di seguito ne illustro otto.

In primo luogo, i datori di lavoro dovrebbero prendere in considerazione l’acquisto di un’assicurazione che copra le richieste di risarcimento da parte dei dipendenti.  Negli Stati Uniti, per esempio, questa assicurazione è chiamata “assicurazione per la responsabilità civile per le pratiche lavorative” (“EPLI”).  Questo tipo di polizze assicurative permette di pagare un avvocato per difendere l’impresa in caso di azioni legali, e consente anche di coprire l’importo richiesto dal dipendente o riconosciutogli dal tribunale.  Sebbene l’assicurazione abbia un costo, molte aziende preferiscono pagare premi regolari e prevedibili piuttosto che dover affrontare spese legali improvvise, elevate e imprevedibili ed eventuali risarcimenti ai dipendenti.

In secondo luogo, i datori di lavoro dovrebbero implementare e far rispettare le politiche sulle molestie sessuali.  Politiche come queste scoraggiano il tipo di comportamento che può esporre l’azienda a responsabilità, ma in molte giurisdizioni possono anche costituire una difesa per l’impresa, nel caso in cui un dipendente la citi in giudizio per aver permesso le molestie.

In terzo luogo, i datori di lavoro dovrebbero esaminare seriamente le disparità di retribuzione e di ruolo.  Se i dipendenti più pagati di un’azienda fossero in gran parte uomini e quelli meno pagati fossero in gran parte donne, un dipendente potrebbe sostenere di essere vittima di discriminazione sessuale.  Allo stesso modo, se i dirigenti fossero in gran parte bianchi, mentre gli operai in gran parte persone di colore, un dipendente potrebbe sostenere di essere vittima di discriminazione razziale in azienda.  Piuttosto che affrontare questi problemi, un’impresa dovrebbe verificare se queste disparità esistano o meno nel proprio ambiente di lavoro e, in caso affermativo, affrontarle.

In quarto luogo, i datori di lavoro dovrebbero valutare se vogliono che le controversie di lavoro siano sottoposte ad arbitrato anziché aa un tribunale.  I datori di lavoro possono determinare questo aspetto inserendo una clausola arbitrale nelle proposte di assunzione che inviano ai dipendenti al momento dell’assunzione.  L’arbitrato presenta alcuni vantaggi: tende ad essere più rapido, è privato, ha la reputazione di essere un foro amichevole per i datori di lavoro e tende a costare meno.  Ma ha anche alcuni svantaggi: non permette di fare appello nel merito della controversia e può costare più di una causa giudiziaria, a seconda del tipo di caso.

In quinto luogo, ogni volta che un dipendente riveli di avere un problema di salute, l’azienda dovrebbe immediatamente valutare come affrontarlo.  Molti datori di lavoro possono ignorare la comunicazione di un problema di salute se non sembra importante per il lavoro del dipendente.  Tuttavia, se in seguito il dipendente ritenesse di essere stato penalizzato a causa del problema di salute, potrebbe agire in giudizio per discriminazione.  Prima che ciò accada, il datore di lavoro dovrebbe collaborare con il dipendente per assicurarsi che il problema di salute non ostacoli le prestazioni lavorative.

In sesto luogo, i datori di lavoro dovrebbero assicurarsi di prendere decisioni coerenti.  Se un datore di lavoro permettesse a un dipendente di lavorare da casa, altri dipendenti potrebbero volere lo stesso trattamento.  E se un datore di lavoro licenziasse un dipendente, questi potrebbe chiedersi perché un altro non abbia avuto la stessa sorte.  I datori di lavoro possono ridurre il rischio di una causa legale stabilendo delle politiche precise e rispettandole.

In settimo luogo, i datori di lavoro dovrebbero consultare spesso un avvocato di fiducia qualora insorgano problemi di lavoro.  Spendere qualche centinaio di dollari per parlare con un avvocato per un’ora prima di licenziare un dipendente o prima di rispondere ad un reclamo potrebbe aiutare un datore di lavoro a evitare una causa che potrebbe costare decine o addirittura centinaia di migliaia di dollari.

Infine, i datori di lavoro dovrebbero prendere in considerazione la possibilità di accordarsi per risolvere le controversie con i dipendenti, anche se sono prive di merito.  Nessuna impresa vorrebbe che un dipendente si approfittasse di lei, ma le cause legali sono spesso più costose e fastidiose del costo di un accordo.  Spendere molto denaro per la difesa, anche in caso di successo, può essere meno economico di scendere a compromessi e pagare al dipendente una frazione di quanto richiesto.

Sonia García Navasquillo

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  • Commercio internazionale
  • Compliance
  • Diritto societario
  • Mediazione
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    Spain | Appropriate Means of Dispute Resolution (ADR) as a prerequisite for litigation

    6 Gennaio 2025

    • Spagna
    • Mediazione
    • Contenzioso

    Summary: Companies with international projection and global presence can count on mediation and its benefits in the different contexts of their business, both in the compliance of the code of conduct and internal rules as well as in the compliance of contracts and projects with third parties or public authorities. In the same way, it facilitates access to a saturated justice system, while at the same time improving the relationship between the parties, as they do not have to face the wear and tear of the judicial phase, which leads to emotional wear and tear.

    I will focus on the intersection between compliance and mediation, as international corporations are increasingly interested in the potential of Mediation applied to compliance frameworks. Although there are a few important challenges that we need to mention, the benefits of international mediation are clear: costs savings, quick solutions and a good understanding between the parties. International mediation and compliance go hand in hand and, although they may not seem to have much in common, they complement each other. The purpose of this article is to illustrate with some practical examples the advantages of compliance mediation for small and medium-sized enterprises operating internationally, in order to demonstrate the potential that exists in this combination.

    Mediation is a form of alternative dispute resolution (ADR) that involves the intervention of a neutral third party, known as the mediator, to help disputing parties reach a mutually acceptable agreement. Unlike litigation, which involves a judge making a binding decision, mediation allows the parties to control the outcome, facilitating a more collaborative and flexible approach to resolving disputes.

    In the context of compliance issues and international contracts, mediation offers a unique advantage by addressing both legal and non-legal aspects of disputes, such as cultural differences, business practices, and organizational relationships. This flexibility is particularly important when dealing with international contracts, where cross-cultural understanding and respect for diverse legal systems are essential.

    The key is still the same recipe as the initial negotiation of a contract. The parties objectively and in a neutral atmosphere and collaborative approach, find ‘solutions’ to their disagreements where both parties win. The so-called win-win is still the best scenario in which the parties should meet again in dispute resolution. I always insist on the word ‘reconnect’ because of its positive connotation in any relationship. Mediation allows the parties to negotiate a mutually acceptable outcome, preserving the relationship between them, with the additional value of cost and time efficiencies and confidentiality guaranteed throughout the process.

    Mediation benefits compliance programmes in two keyways.

    Resolving internal compliance issues

    This is accomplished through facilitating communication and conflict resolution among employees, promoting a culture of dialogue, transparency and accountability. When a company uses mediation to resolve conflicts arising from internal compliance-related situations, it helps to prevent a conflict from escalating in proportions both in the form of legal action and disputes that may involve the public administration.

    A clear example is conflicts related to the code of conduct, where disputes often arise at the HR level. Another example is that arising from conflicts of interest. In both cases the connection lies in the common goal of promoting ethical behaviour, improving communication and resolving conflicts in a way that helps the employee and the company to follow its internal rules and achieve the required standards.

    Mediation opens a space for dialogue and amicable conflict resolution, facilitating employees’ professional and personal growth in a sustained way over time.

    Another example can be conflicts related to cross-border labour issues applicable to the same company, whether private, non-governmental organisation or conflicts between private and public companies. The reasons for the conflict may be related to harassment issues or pay inequality issues. For example, the internal pay system within an international organisation should consider the following elements:

    • Remuneration represents by far the most important and controversial element of the employment relationship and is of equal interest to the employer and the employee.
    • The remuneration system should be based on and consistent with the principles of the organisation.
    • The criteria for determining remuneration should be objective and measurable.
    • The system should be equitable.

    Conflicts often arise around these elements and companies should be transparent, through comprehensive policies, about their position on non-discrimination, harassment or inclusion of their employees within their organisation and the markets in which they operate.

    Mediation can be a channel to help find solutions to equality and non-discrimination issues between employees within the same organisation. It also obliges companies to consider the standards of international legislation (e.g. CSRD) when implementing their policies. We are seeing that it is not a ‘nice to have’ but a ‘must have’.

    Resolving disputes with external parties

    Mediation can be used to enforce commercial contracts or in projects. It helps prevent disputes between companies or between companies and regulators, foster better relations, and ensure compliance standards are met without resorting to litigation. Mediation promotes cooperation between the parties and helps reduce the risk of future contractual violations.

    A clear example of the benefits of the use of mediation in compliance arises in the international context where legal certainty is required for both parties, as well as fair and reasonable management of a long-term project. In some cases, there is a public-private element to the dispute as the public sector is involved (either in licensing issues or as a regulatory authority). This may create some confusion in the roles and rights of the parties, which makes perfect sense when the interests of the investor (private equity) and the community or private parties are very diverse.

    For context, we might think of environmental, social and governance issues that are receiving serious attention from governments and regulators, given the impact on the planet and the people within the communities where they live. Mediation offers a way to resolve these conflicts by facilitating open communication between the parties involved. For instance, if a company is accused of breaching a country’s environmental regulations, mediation can provide a platform for the company and regulatory authorities to discuss the issues, share concerns, and negotiate a solution that satisfies both parties. Instead of pursuing punitive measures or resorting to lengthy legal battles, mediation can help parties find common ground and craft a solution that supports compliance while preserving business relationships.

    A concrete example is mining activities, which contribute greatly to the involvement of foreign entities in resource-rich countries, involving, on a large scale, both foreign and domestic interests, and potentially resulting in pollution and damage to the environment. In addition, there are various problems, especially the use of land for mining activities, which causes friction between mining companies, communities and local governments where mining activities take place. Since these projects take place over a long period of time and involve various interests of both private and public actors as well as communities, mediation is undoubtedly a good way to prevent disputes during the whole process of project development and implementation, offering in conflict situations not only a quick solution for both parties but also a fair and reasonable management of a project in the long term.

    Another tool, with elements of mediation, which is recommended for the successful completion of large projects, as for instance construction projects, are Dispute Boards, a panel of one to three members with extensive experience in the field of the contract, who accompany the execution of the contract until the work is completed on time and on budget. This method is not a pure and simple mediation, although it resembles it, because the Dispute Boards, in particular the so-called DAAB (Dispute Avoidance and Adjudication Board), permanently seek to avoid conflict and, if it arises, to encourage the parties to find a solution or to make it binding. I will go into more detail on this subject in another article.

    Hereby, we can also mention internal control and auditability towards third parties, be they customers or suppliers. The EU directive (CSDDD) puts the emphasis on indirect suppliers in the supply chain. It is therefore important that when establishing a business or investment partnership, all parties involved have a similar level of compliance with standards. In this regard, framework compliance agreements, which are compliance agreements that regulate the compliance obligations of both parties’ subject to a service contract, are very common.

    Aspects of compliance in such contracts may include, among others, anti-corruption policy, fee evasion, international sanctions, trainings, reporting requirements and ways to audit the compliance clauses agreed in the service contract, as well as the escalation clause to resolve disputes amicably, using the various existing ADR modes.

    In the context of commercial contracts, mediation is used to resolve disputes related to non-performance, late deliveries, payment problems, interpretations of clauses or any other dispute arising from a commercial agreement, including any aspect of the compliance agreement as referred to above.

    For an internationally developing company it would be advisable to promote mediation as the type of dispute resolution in conflicts with third parties. One way to promote mediation as an effective means of dispute resolution could be through a clause of voluntary submission to mediation in all transactions with third parties, followed by arbitration or submission to the courts of a certain jurisdiction, known as a tiered dispute resolution clause. These clauses provide for a gradual system of dispute resolution following various alternative methods of resolving disputes, usually culminating in arbitration if the outcome of the first alternative methods is unsuccessful.

    The choice of conflict resolution through mediation is a ‘win-win solution’, whose confidentiality is guaranteed in the face of public attention. Based on these advantages, mediation is considered more suitable to be implemented (agreed, including with the escalation clause) in a contract.

    Challenges of Mediation in International Contract Disputes

    Despite its many advantages, mediation is not without its challenges. Some of the key obstacles include:

    Lack of Enforcement Mechanisms: Mediation agreements are typically non-binding, meaning that parties are not legally required to adhere to the terms of the settlement. While mediation can result in a mutually agreed-upon solution, enforcing the agreement may require the parties to enter into further negotiations or even resort to litigation if one side fails to honour the agreement.

    Cultural and Language Barriers: In international contract disputes, cultural differences and language barriers can complicate the mediation process. It is important to select mediators who have experience with cross-cultural communication and who understand the legal systems involved. Without such expertise, the mediation process may be ineffective.

    Reluctance to Mediate: Some parties may be reluctant to mediate, especially if they perceive it as a sign of weakness or if they are unfamiliar with the process. This reluctance can be overcome with proper education and a clear understanding of the benefits of mediation.

    Although we can say that there is a growth of mediation around the world and the level of satisfaction of the use of mediation is based on its core values, which are impartiality, confidentiality and self-determination, the promotion of the mediation is still an important challenge.

    Conclusion

    In the case of internal compliance, mediation usually takes a more reactive role, i.e. when the conflict has already surfaced within the company or organisation; whereas, in the case of third party compliance, mediation takes a preventive role, such as in the case of Dispute Boards, although it also helps to resolve a commercial conflict between parties who wish to continue to maintain a business relationship. In both cases the objective is the same, to try to find common ground between the interests of the parties in order to resolve or avoid a conflict that could lead the parties to a legal dispute.

    As international trade continues to grow and the complexity of global regulations increases, businesses and organizations can benefit from adopting mediation as a strategic method for resolving conflicts. By fostering cooperation and understanding, mediation can help build stronger, more resilient business relationships and ensure long-term success in a global marketplace.

    Companies need to adhere to their own compliance programmes, but also to the programme of their customers, suppliers or banks with whom they collaborate. Not only is there a need for expertise to know the legal framework applicable to the industry, but there is also a need for conflict resolution when conflicts arise or even to act pre-emptively. Legal battles are expensive, time-consuming and damaging to business relationships. Many jurisdictions and industries are already demanding an obligation for parties to exhaust alternative dispute resolution methods before moving to the litigation phase.

    The year 2025 marks a milestone in the Administration of Justice in Spain with the publication of Organic Law 1/2025 of 2 January on measures to improve the efficiency of the Public Justice Service, which introduces important measures to modernise the judicial system.

    Among these, the compulsory use of Appropriate Means of Dispute Resolution (ADR) as a prerequisite for initiating civil proceedings stands out. This change aims to improve the efficiency of the judicial system and encourage consensual solutions between the parties. The Law will enter into force on 3 April 2025.

    In this preliminary post, we will explore what this novelty entails, the types of ADR envisaged, their characteristics and the consequences of their implementation.

    What are Alternative Dispute Resolution (ADR)?

    ADR are mechanisms that allow parties to resolve disputes out of court, either through direct negotiations or with the help of a neutral third party. These means include options such as mediation, conciliation, independent expert opinion, collaborative law, confidential binding offer and other legally recognised tools.

    The main objective of ADR is to reduce the workload of the courts and to offer citizens a faster, more efficient, and personalized alternative for resolving their disputes. It also seeks to promote a settlement culture, fostering more harmonious relations between the parties involved.

    ADR as a procedural requirement

    One of the most innovative aspects of the new law is that it makes it mandatory to attempt to resolve disputes through ADR before filing a lawsuit in civil matters. This means that, for a claim to be admissible, the parties must demonstrate that they have attempted prior negotiation activity, whether through mediation, conciliation, or any other recognised ADR.
    However, there are exceptions. This requirement is waived in cases involving:

    • Fundamental rights,
    • Urgent measures concerning minors,
    • Disputes relating to filiation, paternity or maternity,
    • Support measures for persons with disabilities,
    • Proceedings for negotiable instruments,
    • When one of the parties is a public sector entity, among others.

    This obligation applies to declaratory proceedings in Book II and special proceedings in Book IV of the Civil Procedure Act, but does not include enforceable claims or requests for precautionary measures or preliminary proceedings.

    Types of ADR recognized

    The law identifies several types of ADR that meet the procedural requirement:

    • Mediation: A neutral third party assists the parties to dialogue and reach an agreement.
    • Conciliation: An impartial professional suggests possible solutions to the conflict
    • Confidential binding offer: Any person who makes a confidential binding offer to settle a dispute.
    • Independent expert opinion: A specialist evaluates the case and offers a recommendation.
    • Collaborative law: Lawyers from both sides work together to find a solution without going to court.
    • Other mechanisms: Any negotiating activity recognised by law, such as direct agreements between lawyers for the parties.

    Key characteristics of ADR

    • Voluntariness and good faith: Although the attempt to negotiate is mandatory, the parties are not obliged to reach an agreement
    • Confidentiality: Everything discussed during the process is confidential and cannot be used in a possible trial, except, inter alia, by express written waiver of the parties.
    • Suspension of deadlines: The initiation of an ADR interrupts the statute of limitations or suspends the expiration of legal actions.
    • Flexibility: The parties can choose the ADR that best suits their needs.

    Procedure and consequences of non-compliance

    To prove that an ADR has been attempted, the parties must provide documentation demonstrating the negotiation effort, such as signed minutes or, if there is no agreement, a certification issued by the mediator, conciliator or expert. If this requirement is not met, the claim may be inadmissible.

    In the event that the negotiation process ends without agreement, the parties may go to court, but the attitude of the parties during the negotiation may influence decisions on procedural costs or possible sanctions for abuse of the judicial system.

    Advantages of ADR

    The introduction of ADR as a prerequisite to litigation can offer multiple benefits:

    • Judicial decongestion: It reduces the workload of the courts, allowing for a more streamlined resolution of cases
    • Lower costs: ADR is often less expensive than a full court process
    • Faster: Many disputes can be resolved in weeks rather than months or years.
    • Tailored solutions: Settlements can be better tailored to the needs of the parties.
    • Preservation of relationships: They foster dialogue and understanding, reducing conflict between parties.

    Criticisms and challenges

    Despite its advantages, the implementation of ADR is not without its challenges:

    • Lack of knowledge: Many people do not know what ADR is and how it works.
    • Mistrust: Some citizens may perceive them as an additional obstacle to accessing justice.
    • Training: It is essential to train professionals who will act as mediators, conciliators and experts.
    • Initial costs: Although cheaper in the long run, the fees of the professionals involved may be a barrier for some users.

    Conclusion

    The introduction of ADR as a procedural requirement in the civil sphere represents a significant change in the Spanish judicial system. This measure seeks not only to streamline dispute resolution but also to foster a culture of settlement that benefits the parties and society.

    Although the transition to this new model may face certain obstacles, the long-term benefits promise a judicial system that is more efficient, accessible, and adapted to the needs of the 21st century. In this sense, ADR is a tool for resolving disputes and a step towards a more humane and sustainable justice system.

    PFAS are chemicals that have been used in industry for over 50 years. Between 4,000 and 5,000 varieties are used for various everyday consumer applications, and they are renowned for their non-stick, waterproofing, and heat-resistant properties. They have come under scrutiny in recent years, and are covered by European regulations, as they are in the USA, where the public authorities have imposed maximum use values, as well as reporting obligations. EU Regulation 2019/1021 (POP) restricts the production and use of certain categories of PFAS in specific industries or above certain values and their use with food products. France has gone further, regulating the levels of discharges into watercourses.

    Scientific research suspects that PFAS cause illnesses such as cancer and reproductive disorders. Given the extent of contamination not only in everyday products but also in the environment, particularly waterways, the issue is likely to pose major public health problems in the years to come. This concern is more pressing given that PFASs are considered ‘eternal pollutants’, as there is currently no way of eliminating them from the environment.

    The impact on companies’ and insurers’ liability is already significant. In the USA, more than 6,000 lawsuits have been filed since 2005. Three groups have already paid more than USD 1.2 billion in settlements due to contamination, and another group has paid more than USD 10 billion to end a class action.

    In France, the Metropole of Lyon has brought a summary expert appraisal action against two chemical companies before considering bringing a liability action.  In addition, several criminal complaints have been lodged for endangering the lives of others and damaging the environment.

    Under French law, companies and their insurers could be liable on various legal grounds. In addition to ordinary civil liability law – based on article 1240 of the Civil Code – the special system of liability for defective products could also serve as a basis for a liability action (articles 1245 et seq. of the Civil Code), with French law defining a defect as any product that does not offer the safety that can legitimately be expected.

    Although it is currently difficult to identify a causal link with an identified disease, asbestos-related case law has shown in the past that victims can take action if they can demonstrate that they suffered anxiety-related harm as a result of their exposure to the product, even if they are not positively suffering from a disease at the time of their claim.

    In addition, the reporting obligations imposed by the public authorities will undoubtedly facilitate the filing of liability actions by facilitating the identification of the emitters and users of these pollutants.

    Insurers are directly affected by this phenomenon, which for them constitutes an “emerging” risk (“silent cover”) because, for the most part, this risk was not identified when the policy was taken out, which exposes them directly and is all the more problematic because insurance premiums have not been able to take such a risk into account.

    Civil liability or professional indemnity insurance policies, especially if they are drafted with “all risks except” clauses (“tous risques sauf” in French legal vocabulary, i.e. covering all liability risks vis-à-vis third parties except those strictly listed), as well as those including clauses relating to environmental risks, are particularly targeted.

    Lloyd’s has already published model exclusion clauses for the attention of insurers, although such clauses can obviously only cover future insurance contracts or endorsements:

    https://www.lmalloyds.com/LMA_Bulletins/LMA23-039-SD.aspx

    The clauses contained in insurance policies must be drafted with particular care, considering each country’s specific features. In France, for example, to be enforceable against the insured, clauses must be “formal and limited”, which means that the exclusion must be both clearly expressed and that it must be possible to determine its content perfectly.

    For example, the Court of Cassation recently ruled that the use of the terms “such as” or “in particular” (“tells que” “en particulier”) in an exclusion clause led to confusion in the interpretation of the exclusion clause, rendering it invalid (Civ. 2e, 26 Nov. 2020, no. 19-16.435).  There was also a debate on the validity of an exclusion clause relating to bodily injury caused by asbestos, a risk which at the time had not been identified by insurers, who subsequently excluded it from most policies (Cass. 2e civ., 21 Sept. 2023, nos. 21-19801 and 21-19776). Similarly, policies should clearly indicate whether cover is provided based on a harmful event or based on a claim (i.e “base dommage” or “base reclamation”, which indicates if the risk is covered, depending on if the damage happened during the policy was valid, or if it depends on the moment when the risk was notified by the insured during such period).

    One thing is sure: the risks associated with PFAS and claims are only just beginning to emerge in Europe, where the conditions for group actions have recently been extended with EU Directive 2020/1828, which came into force on 25 June 2023 and is currently the subject of a draft law under discussion in the French Parliament with a view to its transposition.

    Dealing with unpaid invoices can be challenging for any business. In Belgium, where judicial processes can seem daunting, understanding how to manage debt collection effectively is crucial. This article offers practical guidance derived from a comprehensive legal guide to help your company navigate Belgium’s judicial debt recovery landscape.

    Understanding Your Options

    Assess the Situation: Before taking legal action, evaluating the amount owed and the debtor’s financial status is essential. This assessment will guide you in choosing the appropriate legal avenue, as Belgium offers different courts and procedures based on the dispute’s value. For instance, for claims up to € 5,000, the local court or ‘justice de paix’, which is a court of first instance for minor civil cases, is typically used due to its cost-effectiveness and efficiency.

    Send a Notice of Default: Under Belgian law, a notice of default is mandatory before initiating legal proceedings. This step adheres to legal requirements and gives the debtor one last chance to settle their dues without further legal complications.

    Efficient Legal Procedures

    Use Simplified Procedures for Small Amounts: A simplified legal procedure can be utilized for undisputed money debts up to €1,860, which expedites the payment request process significantly. This approach can be particularly advantageous for recovering smaller debts quickly.

    Consider Direct Bailiff Intervention: For undisputed amounts, irrespective of their size, between companies, creditors can authorize a bailiff to recover the debt directly without a court judgment. This procedure reduces legal fees and speeds up the debt collection process.

    Leveraging Legal and Financial Advice

    Consult with a Belgian Attorney: Navigating the Belgian legal system can be complex. Consulting with a local attorney can provide insights into the most effective procedures tailored to your case. This is especially true for international debt collection, where regulations and guidelines vary significantly.

    Prepare Necessary Documentation: Ensure you have all necessary documents, such as contracts, invoices, and payment records, organized. These documents are essential to support your claim, whether you are dealing with local or international debt recovery.

    After Initiating Debt Recovery

    Use Interim Measures: If immediate action is needed, interim measures like seizing bank accounts or assets may be applicable. These measures, which are temporary and can be requested even before legal proceedings, can ensure that the debtor’s assets are secured while the legal process unfolds.

    Conclusion

    Recovering debts through judicial means in Belgium requires understanding the legal landscape and an appropriate strategy based on the debt’s nature and amount. While this article provides practical guidance, it is important to note that each case is unique, and professional legal advice is recommended for complex debt recovery cases. Businesses can enhance their chances of successful debt recovery while maintaining financial stability by utilizing simplified procedures for smaller or undisputed debts and consulting with legal experts. This proactive approach ensures that your business can continue to thrive even in the face of financial adversity.

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    (Ovviamente è urgente).

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    Lo faccio volentieri, ci mancherebbe.

    Specie se posso mettere il cliente in contatto con un avvocato esperto di Legalmondo.

    Lavorare direttamente con un legale all’estero, però, comporta una serie di complessità che vengono regolarmente sottovalutate dal cliente.

    Le principali sono le seguenti

    • identificare il legale giusto, che sia specializzato e abbia una specifica esperienza nella materia di interesse dell’azienda
    • la difficoltà di dialogare in una lingua che solitamente è straniera sia per il cliente, sia per il legale all’estero
    • comprendere le tematiche giuridiche oggetto dell’incarico, molto spesso regolate da una legge diversa da quella italiana
    • concordare i termini dell’incarico professionale e monitorare l’andamento delle spese, specie se si tratta di attività lunghe e complesse, in paesi nei quali i costi legali sono molto alti

    Nel caso di contenziosi

    • individuare i fatti importanti e i documenti necessari
    • definire la strategia di causa, valutare la possibilità di una definizione amichevole della vertenza e ragionare sulle possibili soluzioni alternative in base agli interessi delle parti
    • gestire istruzioni e comunicazioni al legale in tempi molto stretti e lavorando in fusi orari diversi

    Nel caso di negoziati commerciali

    • condividere interessi e obiettivi della trattativa
    • preparare e partecipare a call conference frequenti ed impegnative
    • seguire le varie fasi delle revisioni dei testi contrattuali

    Se si tratta di operazioni straordinarie

    • impostare l’attività e condividerla con i legali delle controparti
    • allineare le risorse aziendali e i vari professionisti coinvolti per assistere il cliente
    • coordinare le diverse fasi dell’attività

    Tutti passaggi nei quali il legale italiano, se è specializzato nella materia ed ha esperienza nell’assistere la clientela all’estero, può essere di grande aiuto, diventando l’interfaccia tra il cliente e i vari professionisti coinvolti nell’attività, su entrambi i lati.

    È una risorsa preziosa, che consente di impostare il lavoro in modo chiaro, dialogare e ottenere risposte in tempi rapidi, assicurarsi che le informazioni, anche complesse, vengano riportate e comprese in modo corretto.

    Esperienza, facilità di dialogo e rapporto di fiducia

    Infine, è importante valorizzare la possibilità di confronto diretto con una persona di fiducia, esperta e che conosce l’imprenditore e l’azienda, cosa che generalmente non è possibile lavorando direttamente con uno studio all’estero, specie se di grandi dimensioni.

    Il risultato è generalmente quello di lavorare in modo più consapevole, rapido, ordinato ed efficace, il che si traduce generalmente in un risparmio di tempo e denaro.

    Prima di lavorare direttamente con un legale in Costa Rica, Macedonia o USA, è bene considerare l’importanza e il valore dell’incarico e pensare al legale italiano come una risorsa, non come un costo aggiuntivo.

    Perché è importante

    La clausola di scelta delle modalità di risoluzione delle controversie in un contratto internazionale è conosciuta dagli addetti ai lavori come la “Midnight Clause”, perché è generalmente situata tra gli ultimi patti dell’accordo e viene spesso discussa alla fine di una trattativa, magari a notte fonda, dopo avere concordato tutto il resto del contratto.

    • E a tarda notte, stanchi e con poca conoscenza di questo argomento, c’è il rischio che le parti commettano errori gravi, che possono compromettere la possibilità di gestire il contenzioso in modo corretto e con tempi e costi ragionevoli.

    Si tratta, infatti, di un patto complicato, perché non esiste una regola standard per tutti i contratti e per tutti i paesi e un errore si può pagare (letteralmente) a caro prezzo.

    • Un errore frequente, in particolare, è quello di insistere per ottenere la giurisdizione e la legge applicabile italiana, anche in casi in cui questa scelta si può rivelare un autogol, come in contratti con controparti operanti in Cina o negli USA.
    • Un altro sbaglio è quello di affidarsi alla giurisdizione statale, quando per la tipologia di contratto e/o per il paese in cui andrà eseguito l’accordo sarebbe più efficace rivolgersi, se necessario, ad un arbitrato. E’ il caso, ad esempio, di accordi commerciali da adempiere negli USA.

    👉 Approfondimenti

    Video: Vedi qui il secondo episodio della serie Dispute Resolution Talks, con Antonio Valla e Lisa Schachne, in cui parliamo di arbitrato in California.

    Long form: La clausola di scelta del foro: giudice italiano o straniero? Vai all’articolo

    What do the mythical Vega Sicilia wines, El Cid Campeador and the abuse of rights have in common? If you read on, you will find out.

    The Vega Sicilia Único was for many years considered the best, the most prestigious and the most expensive Spanish wine.

    The abuse of rights is a legal institute that allows the defense of situations in which the opponent acts with (apparent and formal) subjection to the law, but making a spurious use of the law with the intention of harming the injured party.

    Last October, the Supreme Court handed down a judgment declaring certain agreements adopted by Bodegas Vega Sicilia S.A., producer of Vega Sicilia Único wine, to be null and void based on the principle of abuse of rights.

    The judgment in question is doubly interesting.

    Firstly, because it highlights the endemic evil of Spanish justice: it declares the nullity of resolutions adopted at a meeting held in March 2013, which were the subject of a lawsuit in February 2014, with a first instance ruling that same year, appealed to the Provincial Court of Valladolid who issued its judgement on 2019  and  four years later the Supreme Court has put an end to the lawsuit: nine years after the shareholders meeting whose resolutions were the subject of the challenge.

    As the Constitutional Court very recently reiterated in its ruling dated last October, “judicial slowness has no place in the Magna Carta”. But, although it has no place, or should not have a place, our courts continue to insist that it does and, as an example, this case that we are commenting on is, unfortunately, no exception.

    Beyond the barbarity of a litigant having to wait for nine years to find a final solution to his claim, the judgment we are commenting on is of interest for other reasons.

    The plaintiffs sought the nullity of certain resolutions adopted at a shareholders’ meeting, basing their claim on the fact that these resolutions constituted an abuse of rights since, through them, the shareholders of Bodegas Vega Sicilia S.A. sought to take control of Bodegas Vega Sicilia away from the company of which the plaintiffs were in turn shareholders.

    The legislation in force at the time the meeting was held (prior to the 2014 reform) established that “resolutions that are contrary to the law, oppose the articles of association or harm the corporate interest to the benefit of one or more shareholders or third parties” could be challenged, adding that those contrary to the law would be null and void and the remaining resolutions could be annulled.

    Following the 2014 reform, article 204 considers that “corporate resolutions that are contrary to the law, are contrary to the articles of association or the regulations of the company meeting or harm the corporate interest to the benefit of one or more shareholders or third parties” can be challenged and no longer distinguishes between null and voidable resolutions; although it partially recovers the concept of radical nullity in the case of resolutions contrary to public order by establishing that in such cases the action does not have a statute of limitations or lapse.

    But both with the regulations prior to the reform and with those currently in force, the controversy resolved by the ruling we are commenting on is the same: when the legislator requires the agreement to be contrary to “law” in order to be able to challenge it, does he mean that it contravenes a precept of the Capital Companies Act (LSC), or can it be considered a requirement for challengeability if it contravenes any other positive precept of any other legal text? And finally, if the resolution in question is classified as constituting an “abuse of rights”, can such a situation be considered as “contrary to law” for the purposes of the application of article 204 LSC?

    The Chamber reminds us of the requirements for the concurrence of abuse of rights in corporate matters:

    • formal or outwardly correct use of a right
    • causing damage to an interest not protected by a specific legal prerogative, and
    • the immorality or antisociality (sic) of that conduct manifested subjectively (intention to damage or absence of legitimate interest) or objectively (abnormal exercise of the right contrary to the economic and social purposes of the same).

    And it then refers to the numerous occasions on which its case law has reiterated that, although the regulation on challenging corporate resolutions does not expressly mention abuse of rights, this is no obstacle to annulling resolutions in such cases, since according to article 7 of the Civil Code (which prohibits abuse of rights), they must be deemed as contrary to the law.

    The interest and peculiarity of this case lies in the fact that the contested resolutions were neither adopted in the interests of the company nor did they cause any harm to it, since the alleged harm was caused to a third party formally outside the company.

    And on these premises, the Supreme Court reiterates and insists that the expression “contrary to the law” in article 204 LSC must be understood as “contrary to the legal system”, which includes those agreements adopted in fraud of the law, in bad faith or with abuse of rights, all of which are included and regulated in the Preliminary Title of the Civil Code. For these reasons, the judgment of the Provincial Court upholds the claim and declares the nullity of the contested agreements.

    And what has El Cid got to do with all this? Is it a typo? No, not at all. Legend has it (invented, it seems, by a monk of the monastery of San Pedro de Cardeña to attract visitors) that Rodrigo Diaz de Vivar won a battle on the walls of Valencia against the Almoravids, after his death, saddling his corpse on his legendary horse Babieca.

    It turns out that his almost fellow countryman, David Alvarez, buyer of the winery in the 1980s, the latter from León, the former from Burgos, but both old Castilians, also won his last battle after his death; David Alvarez was, together with one of his daughters, a plaintiff against the agreements of Bodegas Vega Sicilia and died in 2015; seven years later the Supreme Court has given him the right against the Almogavars, in this case, his own children.

    And two lessons: first, justice is not justice if it is slow, a phrase apocryphally attributed to Seneca; it was not in this case for David Alvarez. Secondly, the abuse of rights is not only an “in extremis” recourse when one does not find frank legal support for one’s claims; on the contrary, it is, on many occasions, the solution.

    Ogni datore di lavoro dovrebbe gestire il rischio di essere coinvolto in azioni legali promosse dai propri dipendenti.  Molte imprese credono di trattare bene i dipendenti e che gli stessi siano felici.  Di conseguenza, ritengono di non essere a rischio di controversie.  Nel mio lavoro, però, mi capita spesso di vedere i rapporti di lavoro inacidirsi e i dipendenti sorprendere la direzione rivolgendosi ad un avvocato.

    I datori di lavoro dovrebbero gestire questo rischio in modo proattivo, invece di sperare che le cause legali non arrivino mai.  Difendere un’azienda dalle cause intentate da un attuale o ex dipendente richiede molto tempo e può essere molto costoso.  Può anche essere incredibilmente frustrante vedere un dipendente di cui l’azienda si fidava fare accuse false e dannose.  Tuttavia, i datori di lavoro possono adottare alcune misure preventive per ridurre l’impatto di un’azione legale: di seguito ne illustro otto.

    In primo luogo, i datori di lavoro dovrebbero prendere in considerazione l’acquisto di un’assicurazione che copra le richieste di risarcimento da parte dei dipendenti.  Negli Stati Uniti, per esempio, questa assicurazione è chiamata “assicurazione per la responsabilità civile per le pratiche lavorative” (“EPLI”).  Questo tipo di polizze assicurative permette di pagare un avvocato per difendere l’impresa in caso di azioni legali, e consente anche di coprire l’importo richiesto dal dipendente o riconosciutogli dal tribunale.  Sebbene l’assicurazione abbia un costo, molte aziende preferiscono pagare premi regolari e prevedibili piuttosto che dover affrontare spese legali improvvise, elevate e imprevedibili ed eventuali risarcimenti ai dipendenti.

    In secondo luogo, i datori di lavoro dovrebbero implementare e far rispettare le politiche sulle molestie sessuali.  Politiche come queste scoraggiano il tipo di comportamento che può esporre l’azienda a responsabilità, ma in molte giurisdizioni possono anche costituire una difesa per l’impresa, nel caso in cui un dipendente la citi in giudizio per aver permesso le molestie.

    In terzo luogo, i datori di lavoro dovrebbero esaminare seriamente le disparità di retribuzione e di ruolo.  Se i dipendenti più pagati di un’azienda fossero in gran parte uomini e quelli meno pagati fossero in gran parte donne, un dipendente potrebbe sostenere di essere vittima di discriminazione sessuale.  Allo stesso modo, se i dirigenti fossero in gran parte bianchi, mentre gli operai in gran parte persone di colore, un dipendente potrebbe sostenere di essere vittima di discriminazione razziale in azienda.  Piuttosto che affrontare questi problemi, un’impresa dovrebbe verificare se queste disparità esistano o meno nel proprio ambiente di lavoro e, in caso affermativo, affrontarle.

    In quarto luogo, i datori di lavoro dovrebbero valutare se vogliono che le controversie di lavoro siano sottoposte ad arbitrato anziché aa un tribunale.  I datori di lavoro possono determinare questo aspetto inserendo una clausola arbitrale nelle proposte di assunzione che inviano ai dipendenti al momento dell’assunzione.  L’arbitrato presenta alcuni vantaggi: tende ad essere più rapido, è privato, ha la reputazione di essere un foro amichevole per i datori di lavoro e tende a costare meno.  Ma ha anche alcuni svantaggi: non permette di fare appello nel merito della controversia e può costare più di una causa giudiziaria, a seconda del tipo di caso.

    In quinto luogo, ogni volta che un dipendente riveli di avere un problema di salute, l’azienda dovrebbe immediatamente valutare come affrontarlo.  Molti datori di lavoro possono ignorare la comunicazione di un problema di salute se non sembra importante per il lavoro del dipendente.  Tuttavia, se in seguito il dipendente ritenesse di essere stato penalizzato a causa del problema di salute, potrebbe agire in giudizio per discriminazione.  Prima che ciò accada, il datore di lavoro dovrebbe collaborare con il dipendente per assicurarsi che il problema di salute non ostacoli le prestazioni lavorative.

    In sesto luogo, i datori di lavoro dovrebbero assicurarsi di prendere decisioni coerenti.  Se un datore di lavoro permettesse a un dipendente di lavorare da casa, altri dipendenti potrebbero volere lo stesso trattamento.  E se un datore di lavoro licenziasse un dipendente, questi potrebbe chiedersi perché un altro non abbia avuto la stessa sorte.  I datori di lavoro possono ridurre il rischio di una causa legale stabilendo delle politiche precise e rispettandole.

    In settimo luogo, i datori di lavoro dovrebbero consultare spesso un avvocato di fiducia qualora insorgano problemi di lavoro.  Spendere qualche centinaio di dollari per parlare con un avvocato per un’ora prima di licenziare un dipendente o prima di rispondere ad un reclamo potrebbe aiutare un datore di lavoro a evitare una causa che potrebbe costare decine o addirittura centinaia di migliaia di dollari.

    Infine, i datori di lavoro dovrebbero prendere in considerazione la possibilità di accordarsi per risolvere le controversie con i dipendenti, anche se sono prive di merito.  Nessuna impresa vorrebbe che un dipendente si approfittasse di lei, ma le cause legali sono spesso più costose e fastidiose del costo di un accordo.  Spendere molto denaro per la difesa, anche in caso di successo, può essere meno economico di scendere a compromessi e pagare al dipendente una frazione di quanto richiesto.

    Ignacio Alonso

    Aree di attività

    • Agenzia
    • Diritto societario
    • Distribuzione
    • Franchising
    Contatta Ignacio