Mediation makes it possible to resolve conflicts out of court. The parties themselves, with the help of a professional mediator, can find a mutually satisfactory solution.

It is a proven and effective method. It is also characterised by the fact that it is voluntary, which makes it more suitable for finding a solution: those involved talk, negotiate and reach the agreements they want without anyone (neither a judge nor an arbitrator) imposing anything on them. Neither does the mediator, who will only facilitate the reaching of such an agreement if parties wish to do so.

This characteristic (mediation is voluntary) has perhaps meant, in a mentality like ours, an obstacle: since nobody imposes it on me, what’s the point? I don’t even try. And if I have to claim something, let the judge give it to me. And also recognise that I am right.

This way of thinking suits us lawyers very well because we make a living out of other people’s problems. And the more and bigger the trouble, the better.

And that’s a pity, because mediation works. There was already an attempt to promote mediation with a draft bill that failed. It demanded that mediation should at least be attempted in certain civil and commercial court proceedings before going to court. But the bill failed and nothing changed.

Now it seems that something similar is being tried again. But only similar.

With the excuse that the courts are very clogged, and even more so now with covid, one of the measures to be adopted is the Appropriate Methods of Conflict Resolution (MASC in Spanish, or for the old-timers, ADR for Alternative Dispute Resolution). According to this new idea, it is intended to make it compulsory (a procedural requirement) to try one of these methods before filing a lawsuit in court. To use “any type of negotiation activity” (“any”, I emphasise), among which the rule lists some: mediation, private conciliation, confidential binding offer, independent expert opinion, and any other non-typified method, including negotiation by the parties or their lawyers.

In this way, the rule trusts, if the dispute is settled in an alternative way, the parties involved would be spared the whole judicial procedure and the proceedings and the burden on the courts would be reduced. That is why many people, particularly mediators, are jumping at the chance. This is not my case. As a lawyer, negotiator and mediator, I believe that the way it is worded does mediation a disservice. I do not know if it will be the final straw that was needed to relegate it to the forgotten drawer where many want to see it, but it will undoubtedly contribute to this.

In the Project, all these methods are put on an equal footing. Any of them will be valid to meet the procedural requirement: if the parties have negotiated or if their lawyers have done so, it will be sufficient. In other words, more or less the same as now, except that it will have to be justified when filing the claim (“negotiation activity documented”). But no, it does not make mediation compulsory, as some former minister for Justice has hastened to write.

And the curious thing is that I do not remember a single case (more than 25 years as a lawyer) in which, before a lawsuit was filed, there was not at least one attempt, even if it was a simple letter, in which the possibility of reaching an agreement was opened. Discussions, conversations, negotiations between lawyers have always taken place and for that there was no need for a rule of procedural efficiency.

If the rule also provides for the possibility of mediation, that’s fine. As in fact it exists now and few use it. Only now, mediation is going to be diluted among a set of other equally valid methods. It is thus placed on the same level as the rest, although perhaps as the least recommendable, given that it is less well known than negotiation and because, of all the methods envisaged, it is the only one that has a specific law that should be referred to and respected. It will be the most formal (mediator, sessions, minutes) and therefore the least desirable.

All in all, I would like to hear other arguments. In the meantime, does anyone really think that, since there are different methods, parties who want to fight in court are going to choose mediation that has not worked? Is anyone really going to try to mediate if “negotiating” (as has been done for centuries) will meet the requirement? Does anyone really think that the way the draft is written, it is going to relieve the courts?

In my opinion, either it will be much more concrete and go back to the idea of the mitigated mandatory nature of the previous draft, or we will have simply added one more formal requirement (yet another!) that will logically delay and make the whole procedure more expensive.

Once the Agency agreement has terminated by the Principal, the Agent usually decides to claim for some indemnities or compensations. These include damages indemnities and goodwill (clientele) compensation.

In order to claim them it is very important to consider the limitation period in which both can be demanded. We have observed that agents usually take too long to decide whether or not claiming for such compensations, they start negotiations with their principals to find a solution to their conflict, sometimes they are re-negotiating their position for a new agreement, area or conditions; or sometimes they simply consider that there is no rush to proceed.

In similar terms as in the EC Directive on Agency Agreements (art. 17.5), the Spanish Agency Act (art. 31) expressly foresees a limitation period of one year from the termination of the agreement in order to claim both the damages indemnity and the goodwill compensation.

This means that after the expiration of such term, no claim will be admitted by our Courts. And in contracts ruled by Spanish law and submitted to arbitral procedures, the agent also risks finding his claim dismissed after that period. This duration cannot be modified by the parties in their agreement, but they can take some actions to extend it.

This limitation has, therefore, important consequences. Of course, there could be an infinite number of situations and we do not intend to cover all of them, but in case the Agency agreement terminates, the following ideas can be useful:

• The one-year period starts from the day the agreement was terminated. This date should also be considered carefully if there was not a formal termination letter.

• One year, according to the Spanish Civil code, implies that the period terminates the exact day one calendar year after (from date to date, for example, May 1 to May 1 next year) or the following day if that day does not exist (for instance, February 29^th to March 1 next year).

• In general terms, the starting of this one-year period is the termination day and not the date in which the letter was sent or received or when the Principal urges the Agent to fulfil his obligations. The previous notice period (if any) shall be respected if included in the termination notice.

• In case the letter contains an immediate termination, that day will be the starting date, even if the procedure reveals that the Principal should have given a termination notice.

• Generally, this applies to each agency agreement. This means that in case of successive and not connected agreements (for instance, the first one ends and the second one starts 10 months later), the termination period will be considered for each separate agreement. Nevertheless, linked agency agreements (agreements with a specific duration that work one immediately after the previous one) are usually considered as one agreement.

• Some activities of the Agent can interrupt this one-year period, re-starting a new one. For instance (some have been accepted by the case-law, others are expressly mentioned in different pieces of legislation):

1. An extra-judicial claim sent by the Agent or by someone in his behalf claiming for the goodwill indemnity, even if the compensation is incorrectly qualified as employment dismissal instead of commercial agency compensation.
2. Claiming the goodwill compensation as a labour indemnity before the labour courts when it was not clear the sort of relationship between the parties.
3. Starting a conciliation procedure before a First Instance Court
4. Starting a mediation procedure (when done by both parties or by one of them enforcing the mediation clause in the contract) will also interrupt the term during the mediation procedure from the moment in which the request for mediation has been received by the mediator or deposited at the mediation institution.
5. The acceptance by the Principal of the debt or the goodwill compensation when asking the clients list.

• Other actions by the Agent could have different results depending on the circumstances and some have not been accepted as valid to interrupt this limitation period:

1. A claim started by the Agent before a non-competent court, will depend on the circumstances.
2. A criminal prosecution does not interrupt the one-year period
3. The starting of the preliminary procedure (diligencias preliminaries) has neither been accepted to interrupt the one-year period.

Therefore, as a conclusion, in the drafting phase of the agreement it seems to be a good idea to consider a mediation clause. This will grant the parties an additional and useful tool to solve their conflicts and a possible way to obtain extra time in case the courts will be called to intervene.

And when an agency agreement terminates (with or without mediation clause), our recommendation for the Agent is immediately submitting the case to a legal local advisor. When the Agent has, for example, received a promise for a new agreement and he is still discussing on it, or he is still negotiating the termination, it is advisable to be careful and to take the necessary actions at least to interrupt the lapse of the one-year period and not to lose the possibility of a future claim. A simple letter carefully drafted could be very useful for the Agent’s interests.

A final remark for Distribution Agreements. Although for some aspects, particularly the goodwill compensation, Spanish Supreme Court has admitted the analogy with Agency agreements, this is not the case for the limitation period of one year to claim it. The distributor claiming for the goodwill indemnity will not be limited to one year after the contract terminated. In cases like these, it is convenient, however, to have precise advice on the type of contract we are facing, since the border between the agency and the distribution is not always clear.

Even Abogados has defended a foreign manufacturer distributing its products in Spain with a local agent/distributor. The agent/distributor (based in Spain) sued our foreign client (the Manufacturer) claiming for the goodwill indemnity foreseen in Article 28 of the Spanish Agency Act. First Instance Court has accepted our arguments basically due to the lack of evidences produced by the plaintiff. Our intention is not to discuss about the burden of proof as general legal principle but to expose some clues in order to better prepare a similar procedure.

The facts

Mr “A” (the Agent) and the Manufacturer had a non-written agreement since long time ago. In 2000 the agent/distributor (a company owned by Mr “A”) and the Manufacturer signed a written contract transforming and substituting the old relationship.

After a period of more than five years, the Manufacturer gave a previous notice to terminate this contract. The agent/distributor then claimed the goodwill (clientele) indemnity as a consequence of this termination.

The debate

One of the discussion elements (quite frequent) was to determine if we faced an agency or a distribution agreement. The problem in this case was probably more a theoretical tan a real one due to the fact that although goodwill indemnity is expressly foreseen at the Agency Act, it is also admitted by analogy in distribution agreements. The question was, therefore, to justify its applicability. Let’s assume (as in the Court judgement) that it was an agency agreement.

Article 28 of the Agency Act (in similar terms to Article 17 of the EC Directive 86/653 of December, 18^th) states that an agent is entitled to an indemnity for customers he brought to the principal (the Manufacturer in our case) or with whom significantly increased the volume of business and provided the principal continues to derive substantial benefits and the payment of this indemnity is equitable due to special circumstances. The amount of the indemnity may not exceed the agent’s average annual remuneration over the preceding five years.

The conclusions

Goodwill indemnity benefits the agent but it is also his responsibility to prove to the Court the necessary elements in order to obtain it. In our case, First Instance Court has rejected this indemnity due to the complete absence of evidences of the main elements. The judge has stated clearly the following:

1. No invoices related to dues-but-not-paid commissions have been showed during the procedure.
2. The plaintiff (the Agent) has not proved to which services these invoices were due, the invoiced company, the commissions’ rate applied, the date from which they were due, if the activity had been correctly ended, if the sales were related to machinery or to spare parts…
3. A document called “accounting statement” (estado de cuentas) has been prepared by the plaintiff himself but has expressly been contested by the defendant (the Manufacturer): this does not show his current situation.
4. The judge did not accept the goodwill (clientele) indemnity because no invoices attesting the collection of commissions have been presented, or have been produced in foreign languages without translation into Spanish.
5. The only references to these invoices made by the accounting expert in his report to the Court are not enough considering that he does not include them in the report.
6. The “clients” included in such clientele were not proved neither it was the existing commercial relationship.
7. There is a complete lack of evidence concerning the increasing of profits that will still benefit the Manufacturer in the future or receive from possible new clients.
8. Concerning the indemnity for the budgets prepared by the agent at the end of the relationship but not still accepted by the Manufacturer these were not proved, including the alleged orders sent by the Manufacturer.
9. The previous relationship with the agent (Mr. “A”) has nothing to do with the current situation, nothing is said about the clients presented by him, his contractual relationship was substituted by the agreement with the new company, and in case of goodwill indemnity, if applicable, this was to be calculated on the basis of the five previous years without considering the previous relationship.
10. The only documents produced by the plaintiff were the signed agreement and a report prepared by an expert but which does not seem to be very trustable considering that the expert modified his conclusions during the trial.

Franchise activity: Definitive suspension of the Spanish National Franchisors Register

According to Spanish Retail Act (article 62.2) all franchisors that intend to develop in Spain the franchise activity must communicate to the Franchisors’ Register the starting of their activity within three months.

Such Register is regulated by Royal Decree 201/2010 (February 26) which also foresees the information to disclose, the obligation to update it within three months of any modification and inform, during each month of January, about any closing or opening of premises in the previous year. The information should be disclosed electronically.

This said, during 2018 there have been some technical difficulties at the Register provoking the provisional suspension of such disclosure obligations. During that period, the Register did not admit any notification regarding franchisors.

From June 2018, nevertheless, the Minister of Economy, Industry and Competitiveness has decided to definitively suspend the activity of the Franchisors’ Register. This decision has been adopted with the intention of supporting companies in the franchise sector and to cancel as many obstacles as possible in the development of the commercial activity. Therefore, franchisors are no longer able to disclose such information to the Register and information on Franchisors is not longer available.

The decision does not affect, however, other mandatory obligations such as the disclosure information to the potential franchisees at least 20 days before the signature of the agreement, the pre-agreement or before any payment made.

Official information (in Spanish) can be found at the website: https://sede.micinn.gob.es/solicitudFranquiciadores/

Mediation is the great unknown. It works with great success in other countries and here it is frequently disqualified, even in specialized areas, with arguments that reveal that it is not known what it is.

Preambles of our laws praise its benefits and they declare their firm intentions to promote it, but the reality shows that only some private institutions and some judges with a deep vocation to satisfy the parties’ interests bet on it with determination.

The truth is that when the mediation is thoroughly known, its promotion and impulse are usually sought.

Conflicts of trading companies with their clients are an ideal field for testing mediation. Often the interest of this type of companies goes far beyond recovering an amount in short term and they start judicial procedures that could even exceed the amounts at stake.

Online trading companies cannot attract professional investors with a profile of default and insolvency and who know how to surround risk control systems to make large investments leveraged without funds to respond.

In this context, the mediator will be an effective assistant so that the parties can get to better know and understand each other true interests.

A mediation clause in an options and futures agreement could probably avoid endless and uneconomic procedures that, in addition to eroding the justice administration system, put the clients in a position to withstand up to ten years of unnecessary judicial conflict.

Relationships in which people intervene will lead, sooner or later, to major or minor conflicts. In business relationships, companies try to minimize in their contracts (when they sign them) what can happen in case of discrepancies. But, even if these are essential, it would be naive to think that a contract will give us the solution to any conflict. No matter how many eventualities have been foreseen, the management of the conflict will always go further. How to act, then? How to be prepared when the discrepancies begin? I will present some guidelines from our experience managing and helping to avoid and to resolve conflicts. And although I’m going to focus on those that occur between companies (or among the people of those companies), what I will say could be extrapolated to almost any type of difference.

1. Identify that you are facing a potential conflict

A conflict arises when there are expectations that are not met: the agent seems not to respond as expected, the entrepreneur does not provide what was promised, the product stops covering expectations, the service is no longer adequate. Or we simply want to change the supplier, replace the distributor… the list is endless.

In any of these situations the conflict is just around the corner and, although it is necessary to realize it as soon as possible, it is not always perceived with clarity. Any discrepancy is possible source of conflict and the first thing necessary is to verify where we are and its severity. The steps we will take immediately after will depend on this verification and the time it occurs.

2. Do not react impulsively

In a situation of potential conflict, the most usual is to react: grab the contract and try to see where I am right, what can I argue to reaffirm my position, how to impute responsibility to the other party. But when we react impulsively we renounce our capacity for conviction and persuasion. For many reasons that we think we have, a relationship or a contract have multiple interpretations and nuances that can vary the conclusions and the results.

When a manufacturer of bakery products decided to change their distribution system (potential conflict), he sent all his wholesalers a letter “resolving the commercial relationship” that they maintained (reaction). With a letter of just over two lines, he dug his own judicial grave since the judges considered that what was resolved was a distribution contract and not the annual price conditions that applied, and recognized the wholesalers a goodwill (clientele) compensation.

When a footwear manufacturer, in a change of commercial strategy (potential conflict), unilaterally resolved a long-term agency contract by imputing a supposed inactivity of the agent in his country (reaction), he did not take into account that in other comparable countries the situation was identical and that the decrease in sales was due more to the generalized crisis than to the poor performance of the agent. The alleged resolution for fair cause was not admitted and he had to pay compensation.

When another manufacturer of components for boats was not satisfied with the performance of his agent (potential conflict), he simply decided to sell his products through another representative (reaction) without taking into account the exclusivity granted to the first one and without having warned him properly.

All these reactions are understandable, but none was sufficiently thought out and in all cases we have had headaches as lawyers when defending them before judges and courts. An advice and previous strategies would have avoided many difficulties, would have saved much time and money to the parties and would have had a result without a doubt much more satisfactory.

3. Seek advice immediately

Although nobody better than you knows your business, nobody better than someone external can help you to manage with an adequate perspective the conflicts that are arising.

We have all certainly negotiated and we all feel legitimized to do so, but we are not always able to identify confluent interests or to manage the emotions (our own and those of others) that any conflict entails. External aid is essential, and the sooner you get there, the better.

If the footwear manufacturer imputes to the agent his loss of confidence in the product and a poor performance in the territory and on that basis he decides to terminate the contract, the temptation of the “injured agent” is to respond to the principal with sales figures, arguments, explanations about the clients, to impute the principal’s internal disorganization… Those answers and that information, even though they may be true, could turn to the agent if, for example, he admits something that he later regrets, he gives information that the entrepreneur did not have or he recognizes his weaknesses. And that happens almost always! In addition, it is very frequent that in this phase the parties involved are the ones in the conflict acting on their own, without any objective help, and committing, most of the time, more errors than are desirable.

However, from our experience, we have observed that an external consultant to the relationship and with sufficient competence in the matter discussed, in the potential litigation and its possibilities, and with the skills to negotiate objectively, can suggest a strategy, help to understand the interests that exist, how to approach them better and which method of solution is best suited

4. Design an action strategy

Indeed, facing any potential conflict, in any situation of discrepancy, as insignificant it may seem initially, the vision in the medium or long term from the first moment in which it originates is crucial. It does not do any good to react if it is not within the framework of a properly strategy designed in advance.

I like to remember those letters that were sent demanding a debt of 1,000 and to which the alleged debtor replied that they were not 1,000 but 900 offering a recognition of the debt that, otherwise, would have been more difficult to prove.

A response to a letter in which we are accused of a breach may be the best or the worst ideas depending on what the next steps are. What are the true interests beyond the concrete position at that time? Should I continue to maintain the commercial relationship? If it is not adequate, is it possible to reform it? Is it still viable? Am I interested in resolving the conflict as soon as possible to continue dedicating myself to my productive / commercial activity? What perspective of time, money, energy, reputation … entails embarking on a judicial / arbitral process? What alternative ways are there? These are some of the questions that every person has to ask themselves in order to strategically solve the conflict.

5. Do not threaten, act with a head.

Normally when the conflict has begun or when it is in its early stages, it is usual to threaten to go to court (warnings of the type “we will have no choice but”, “we will be forced to” are the formulas that hide such reaction). This is usually a bad idea. First, because threatening —depending on how it is done— could even be a crime. But, in addition and above all, because it usually closes more doors than it opens.

The solution to the conflict may come, indeed, from a judge (or arbitrator) who imposes it, but it is not the only way and probably, if we follow this path, it will not leave anyone happy. The negotiation assisted from the beginning by a professional that helps to alleviate the emotional burden and to know alternatives, or the mediation (the intervention of a neutral professional that helps to understand interests and bring positions of the parties so that they themselves, with the mediator’s help, can find a solution) are almost always better solutions. The threat will put the other party on a defensive position and in a sort of way it constrains us to comply with what is threatened so as not to show weakness. However, the action framed in a strategy according to our interests (negotiated or mediated), will place us in the best way of solution.

6. And do not let the conflict grow: talk and listen.

And if “threatening” with legal actions adds blockage to an already difficult situation, talking (and “talking” is usually always better than “writing”) clears the way even more. And together with “talking” nothing better than “listening” and to do it actively. It is shown that in most conversations, discussions or even negotiations, we act more aware of what we want to say, how to counterargument or convince, instead of really understand what the other party proposes or of trying to look for common spaces.

Conflicts are not always definitive (ending the commercial relationship), and very often they are merely circumstantial or partial (unpaid bills, undelivered products, erroneous executions, lack of accountability). In these states, it is much easier to establish new bases or conditions, to find out where the discrepancies are and to solve still minor conflicts, or preventing them from becoming more complex. The help of a loyal advisor who understands the interests to safeguard and collaborates in the determination of the steps to take, is, again, essential. I would dare to say that, on principle, you have to distrust who advises you to go directly to the litigation or confrontation.

The Provincial Court of Las Palmas, in a judgment of October 20, 2017, has ruled on a matter in which we defended a securities company acting as an online broker in front of one of its clients that, operating with derivative financial products, he had left a considerable unpaid debt.

The most interesting part of this resolution is that it condemns the client to pay the contractual interest agreed upon at 18% per annum, rejecting his claim that the clause be declared null and void in accordance with the Consumer and Users Law.

Despite the fact that multiple judgments have considered as consumers those citizens who acquire shares linked to the evolution of the markets, the Court has considered in this case that the client of this type of complex financial products that acts daily in the markets does not fit into the definition of consumer of the Law.

In addition, the Court also understands that these contracts with derivatives are far from being similar to the consumer loan contracts which are the basis of the majority of judgments to declare as abusive this type of clauses, even if they contain a clause on high interest rates to discourage the client from leaving uncovered amounts.

The Provincial Court of Pontevedra (judgement of May 22 2017; rec 213/2016) analysed several contracts between Dismaca, SA (agent) and Repsol Butano, SA (principal). Although the agent alleged that it was a mixed contract and not an agency one, the Tribunal concluded that there was an agency contract independent of others that might exist between the parties.

The discussion was due to the expiration of the one-year limitation period to claim compensation for clients established by the Agency Law. The Agent waived this period and asked the application of the general one set in Article 1964 of the Civil Code due to the alleged mixed and atypical nature of the contract.

The Court rejected this claim because of its contradiction with the approach of the claim that spoke of agency contract, and by the exercise of the action of goodwill (clientele) compensation based on the regime of the Agency Law.

The independence of the contracts is, in the Court’s view, contradictory with a hypothetical single mixed contract. Nor does it accept the qualification as an atypical contract, given the express reference to a special Law that regulates the agency contract. The Court insists that it was the agent who claimed based on an agency contract, only with subsequent rectifications to avoid the application of the expiration term.

The recent Supreme Court judgment 137/2017 of 1 March (rec 2672/2014) considers that the criteria to calculate the amount of goodwill (clientele) compensation in a distribution contract cannot follow the criterion of the “gross margin” obtained by the distributor, but the “net margin”. In order to reach this conclusion, the Court follows its judgment 356/2016 of 30 May (rec 148/2014), which refers to the Judgement 39/2010 referring to 697/2007 of 22 June (rec. 2943/2000).

At present it seemed that the Supreme Court was inclined to calculate the clientele compensation in distribution agreements on “gross margin” as an analogy with Article 28 of Agency Act. Does this imply a change in case law?

According to well-established jurisprudence [see Supreme Court Judgment 1392/2008 of January 15, rec. 4344/2000)], a distributor may be entitled to goodwill (clientele) compensation if the inspirational idea of article 28 of the Agency Contract Law was applied by analogy. However, since there is no “remuneration” in distribution contracts such as that received by the agent (commissions or fixed amounts), but “commercial margins“, the question was whether the “gross margin” (difference between the purchase and resale price) or the “net margin” (the same difference but deducing other expenses and taxes) should be considered as the basis for this compensation. The conclusion accepted by the Supreme Court until now seemed that it was necessary to calculate the compensation on the “gross margin” being a magnitude more comparable to the “remuneration” of the agent: it was not possible to deduce other expenses and taxes, just as for the agent those same expenses and taxes were not deduced.

However, the new Judgment seems to accept the contrary and to support the calculation of clientele compensation in distribution agreements on net margins. Nevertheless, in my opinion, the reading done by the Supreme is not correct.

In the 2017 ruling, the difference between gross/net margin is mentioned referring to judgment 356/2016 of May 30. In that judgment of 2016, it was said that although in a previous Judgement 39/2010 was not concluded on whether the calculation had to be made on gross or net amounts, in a previous one (Judgment 296/2007) it was, nevertheless, accepted that the net profit obtained by the distributor (by deducing expenses and taxes) was similar to the remuneration of the agent, and not the gross margin which is the mere difference between prices of purchase and resale.

This said, in my opinion, in its Judgment of 2016, the Supreme Court did not use a correct reference when leaning on the one of 2007 for something that the latter did not say. In fact, in 2007, the Supreme Court did not quantify the goodwill (clientele) compensation, but the damages compensation. More specifically, the Court said in 2007 that “goodwill (clientele) compensation might be clearly requested in the complaint, without any confusion or ambiguity“, and after that, the Court concluded that it “should resolve according to the terms in which the debate … was raised in the initial claim. And since this one was interested in compensation for damages mainly based on the length of time the relationship … the most appropriate solution according to the case law of this Court … is to set as compensation for damages on an amount equivalent to the net profits that the plaintiff obtained by the distribution of the products of the defendant during the year immediately preceding the extinction of the contract“. Therefore, the Court did not analyse in 2007 goodwill (clientele) compensation, but damages compensation.

Then the conclusion followed in 2007 to calculate the damages indemnification on net margins, was then followed in 2016 but to calculate the clientele compensation and reiterated now in the 2017 Judgement with the same conclusions.

Regardless of all this, and also in my opinion, it does not make much sense that if the analogy with the Agency Contract is applied, any amount (such as taxes or other expenses) should be deducted from the gross margins to reach a net margin. If the intention is to analogously apply the “remuneration perceived by the agent”, it seems clear that the agent has also expenses and also pays taxes; nothing in Directive 86/653/EEC nor in the Spanish Agency Act says that it must be deducted anything from the “received” amount in order to calculate the goodwill (clientele) compensation. If the amounts the agent perceives are the commissions (from which he will pay his taxes, his rent expenses, employees, etc. obtaining his “net profit”), the same criteria should apply in a distribution contract.

In conclusion, and in my opinion, the Judgment of 137/2017 only emphasizes what I consider to be a previous error and adds additional confusion to a question that is already very much discussed: the analogous application of goodwill (clientele) compensation to distribution contracts and its method of calculation.

NOTE: The Supreme Court seems to confirm this judgement by a new one in May 19 2017 signed by the same Judge.

The relationship between franchisor and franchisee in a franchise agreement has a certain complexity as we all know well. In Spain, it can also be deduced from our internal legislation (primarily the Retail Act and Royal Decree 201/2010).

In fact, we have not in Spain specific regulations on the content of the franchise agreements, so its elements (how to regulate supplies, trademarks, know-how transmitted, technical assistance, relations with other franchisees and the network, exclusivity and territory, non-compete clauses, promotion and advertising, sales via the Internet, amongst others) will find accommodation in rules dispersed. The main source of rights and obligations will be, therefore, the contract itself. And we will need it as well together with other contractual documents in order to try to prevent and solve conflicts.

The Act on Mediation in Civil and Commercial matters (5/2012) and the Arbitration Act (60/2003) grant us in Spain some clues for the solution of possible difficulties. In order to anticipate, to prevent and to solve potential conflicts we should use the franchise agreement since the beginning of its drafting and the following relationship between franchisor and franchisee with, in my opinion, three steps involved:

1. the use of mediation for cases in which the conflict has raised but the parties want to solve it either for the continuity of the relationship or to terminate it by mutual agreement,
2. establishing a proper communication system between franchisor and the network with the intent to avoid, as far as possible, the existence of the conflicts or the provision of an internal solution (in some brands it has been developed with success the “defender of the franchisee”);
3. the use of arbitral resolution of conflicts formulas that can provide the parties more flexibility than ordinary courts.

But why mediation and arbitration can be useful in the franchise agreements? How to anticipate to the possible conflicts and take them into account?

First, in order to submit a franchise agreement to mediation and arbitration it would be just necessary that the matters are disposable by the parties. They are excluded, therefore, those cases considered as loi de police or public order (for instance, the compulsory disclosure information before the signature). The mediation is essentially a voluntary process and so are the submission to arbitration, the choice of the arbitration court and the procedure to regulate the procedure.

Second, mediation and arbitration will benefit from the absence of formalities. In mediation, because franchisor and franchisee establish the essential elements for finding a solution by themselves. In arbitration, because even if the covenant has to be accepted in writing, this requirement is accepted without excessive rigidity. Moreover, in both cases, publicity of the case is lower than that obtained through the courts but, in return, the possibility of appeal is very limited (although it can also be seen as an advantage in the short duration of the procedure).

Third, and since in a franchise agreement abound elements of different nature, the solution agreed by the parties (mediation) can be highly recommended. In the same way, the special knowledge of the particularity of these contracts may probably find a better follow-up and a greater commitment with an arbitrator, than with an ordinary judge with very different issues and excessive workload.

Given these elements, we can summarise some recommendations when dealing with conflicts in a franchise agreement. Obviously there will be adapted to each case but, at least, it seems essential to be considered as a possibility for these agreements.

1. The use of arbitration may be advisable in those cases where the technical knowledge of the franchise is essential. The faster and greater specialization of the arbitrators may benefit of cost reduction. In this case it should be chosen arbitrators, institutions and procedures that are appropriate to franchise, avoiding any suspicion of lack of independence and ensuring adequate representation of the parties.
2. A good starting point might be a mechanism that favours the internal communication within the network allowing the flowing of information, the knowledge of the positions of the franchisees and the appropriate answering from the Franchisor. Even the creation of a department or a representative channelling internal conflicts could be considered.
3. The use of mediation as a way to solve possible conflicts may be advisable due to its flexibility. In this case it is advisable to provide it expressly in the contract with its essential elements such as the nomination of the mediator, the place, the language and the basics of the procedure. To leave these elements to be defined when the conflict arises does not seem a good idea.
4. Finally, the pre-contractual information disclosed to the franchisee should include the essential elements of the system chosen, in particular to avoid that its contractual provision could be considered as abusive.