Agency and distribution agreements. Phrases to avoid when ending a business relationship without a written contract

11 October 2025

  • Spain
  • Agency
  • Contracts
  • Distribution
  • Litigation

The increase in so-called cybercrime in recent years is so significant that it requires strong legislative and judicial responses. Losses from online fraud in Europe exceed $100 billion, according to Nasdaq Ventures, of which $5 billion correspond to Spain.

In Spain, 192,375 cases of computer fraud were reported in 2019, but by 2023 this figure had risen to 427,448. According to the latest official data available, computer fraud accounts for 90.4% of all cybercrimes, with growth of 378% between 2016 and 2023.

There are many different types of computer fraud, and they are named in English (after all, the lingua franca of our time), including, among other ingenious methods used by skilled fraudsters, those with curious and amusing names (except for those who suffer from them) such as phishing, pharming, juice jacking, tabnabbing, bluesnarfing, catfishing, spoofing, vishing, smishing, whaling, carding, and the one we are interested in today, man in the middle (MITM).

Man in the Middle scam: how it works

This MITM fraud involves intercepting communications between two devices connected to a network, allowing the attacker to alter and divert messages exchanged between users. The fraudster intercepts a communication in which one user requests a payment from another and then modifies the IBAN of the bank account to which the transfer should be made in order to obtain the money. The process generally unfolds as follows:

  • Without the company noticing, an attacker intercepts and manipulates an email, changing the IBAN number of the account to which the payment should be made.
  • The cybercriminal impersonates the supplier, sending the message from an email address that is almost identical to the original, but with a slight alteration that is almost imperceptible.
  • The receiving company, trusting the authenticity of the message, makes the transfer to the fraudulent account.

 

This results in a transfer of assets to the detriment of the person ordering the transfer and in favor of the cyber thief, so that when the person ordering the transfer notices the error, their first reaction is to try to contact the receiving bank in the hope that the funds can be blocked in time. However, in most cases, the cybercriminal has been quicker: the money has already been transferred to another account or withdrawn, leaving little room for maneuvering, except for the initiation of legal proceedings, which we will discuss below.

The immediate question is what responsibility the bank that has received the transfer order from the deceived user and credits the cyber fraudster’s account with the amount in question has in cases where the payer identifies not only the (fraudulent) IBAN but also the name of the beneficiary of the payment order, which obviously does not match the name of the holder of the bank account receiving the funds.

The common-sense answer would be that the bank receiving the transfer should confirm that the holder of the account to which the funds are credited and the individual or entity identified as the beneficiary in the transfer order match; if this is not the case, it should suspend the payment and request clarification from the payer. However, this is not the case in light of EU legislation and its transposition into Spanish law, as we will see below.

Until October 9, the European banking system operated under the premise that the validity of a transfer was based exclusively on the correctness of the IBAN. In other words, if the account number was correct, the transaction was considered valid, even if the beneficiary’s name did not match. This practice has led to numerous cases of fraud, unintentional errors, and loss of funds, especially in instant transfers, where speed can compromise security.

The most reasonable option for the defrauded payer to recover their money is to sue the bank receiving the payment order (with which they have no contractual relationship) for non-contractual liability under Article 1124 of the Civil Code; in fact, criminal proceedings against the account holder, who is usually referred to in slang as a “mule,” do not usually have a satisfactory outcome, both because the bird usually flies away and because of its lack of solvency.

The case law of the Provincial Courts has been divided between rulings that strictly and faithfully applied Article 59 of Royal Decree-Law 19/2018 of November 23, on payment services and other urgent financial measures, dismissing the claims of those defrauded, and others in which arguments were sought under the premise of lack of diligence to condemn the bank to compensate the payer.

This has led to the establishment of quasi-objective liability for banks in relation to digital fraud, imposing a higher standard of diligence on them and transferring the risk inherent in online banking to them, except in cases of willful misconduct or gross negligence on the part of the customer. This line of reasoning, which has been developed from lower court rulings (AP Madrid 178/2015; AP Alicante 107/2018; AP Valencia 212/2021) to the Supreme Court itself (STS 571/2025, among others), is in line with the idea that it is up to the bank to prove that its systems were secure, up to date, and sufficient to prevent the crime from being committed.

In this context, the concept of bonus argentarius takes on renewed relevance. This is a principle that was included in Law 57/68 to protect home buyers in the real estate sector, but the Supreme Court has ruled on several occasions that it can also be applied to other financial investments. This means that, in the event of losses due to negligence on the part of the financial institution, the customer can file a claim under Law 57/68 and hold the institution liable.

The bonus argentarius is based on the presumption of fault on the part of the financial institution, which means that even if the customer has no concrete evidence of negligence, it is assumed due to the duty of care that the institution must exercise in the management of investments.

Based on this principle, the diligence required of financial professionals is not that of the average trader or pater familias, but that of a qualified expert who assumes the obligation to protect the funds entrusted to them by implementing “necessary and renewable” security mechanisms. This implies not only maintaining basic technical measures for enhanced authentication, but also proactively adopting internationally recognized anti-fraud solutions, such as name-IBAN verification (Confirmation of Payee or IBAN-Naam Check), which have proven effective in comparable jurisdictions.

In line with that doctrine and case law, it can be said that the omission of beneficiary verification measures today constitutes a breach of the contractual duty of diligence and good faith (Articles 1104 and 1258 of the Civil Code), giving rise to civil liability for the damage caused, such that MITM fraud cannot be considered a residual risk attributable to the customer, but rather a systemic security failure attributable to the financial institution, as the designer and custodian of the electronic payment channel.

In this state of affairs, the Supreme Court, in its recent ruling of March 27, 2025, opted for the alternative of strict application of Article 59, arguing that “if the payment service user provides additional information to that required (specification of the information or unique identifier that the payment service user must provide for the correct initiation or execution of a payment order), the payment service provider shall only be liable for the execution of payment transactions in accordance with the unique identifier provided by the payment service user… and that the liability of the payment service provider, both at Community and national level, is such that it fulfills its obligation by executing the payment transaction in accordance with the unique identifier, without the addition of further information implying a higher standard of diligence

It is true that, in conclusion, the Supreme Court offered a glimmer of hope to defrauded users when it stated that “the interpretation set out above does not exempt the payment service provider from liability when circumstances, unrelated to the provision of additional data, are found to have contributed to the defective execution of the transaction, either because an additional requirement or demand (e.g., the identification of the beneficiary), or because the payment service provider of the payer or the beneficiary had taken advantage of the error for their own benefit, or because, once the existence of the error had been communicated without delay, one or the other had not taken the measures required by the diligence of an expert trader to allow retroaction or, where appropriate, to minimize the damage.”

Regulation (EU) 2024/886: a paradigm shift

And in this scenario fraught with doubts, Regulation (EU) 2024/886 bursts onto the scene, representing a 180-degree turn and a paradigm shift: the new European Regulation, approved in April 2024 and coming into force on October 9, 2025, establishes a clear obligation for banks: they must verify that the name of the beneficiary provided by the payer matches the IBAN holder before executing an immediate transfer in euros.

The new features of this regulation are

  • mandatory application to all instant transfers within the SEPA area,
  • the new name matching system: if there is a discrepancy between the name and the IBAN, the bank must alert the customer before executing the transaction, and
  • increased liability for financial institutions in the event of fraud or error due to lack of verification.

In short, the aim is to reduce the risk of fraud, protect consumers, and increase confidence in digital payments.

This means that Law 19/2018, which regulates payment services in Spain and does not require verification of the beneficiary’s identity, is now outdated, underscoring the need for a national legislative review to harmonize the legal framework with European requirements.

In conclusion, the obligation to verify the beneficiary of transfers represents a significant step forward in consumer protection and the fight against financial fraud. Regulation (EU) 2024/886 marks a turning point in banking operations, imposing an active responsibility on institutions to ensure the authenticity of transfers.

In any case, the question remains open regarding the solution to MITM frauds executed before October 9, 2025, and the responsibility of the banking institution. For the time being, the aforementioned Supreme Court ruling of March 27 closes the door to claims against banks, but it cannot be ruled out that the entry into force of Regulation 2024/886 and the paradigm shift will lead to a rethinking of the Supreme Court’s position in line with the quasi-objective liability that lower courts have been maintaining. We will have to wait and see, but such a change would be a great success for bank users who have suffered from this MITM fraud and all other types of cyber fraud.

It is quite common for business relationships with agents or distributors to last for years without any signed documents. And be careful, because we know that a contract can exist even verbally.

The absence of a written contract will add difficulties in the event of a possible claim, so what you do between the decision to terminate, and the moment of the claim is very important. Remember: ‘anything you write will be used against you’.

The decision to terminate a business relationship is a very delicate moment to which, for some reason, solicitors are not invited. Here are some examples (all real) in which companies or employees with the best of intentions wrote to the agent/distributor. All of them were subsequently very damaging to the company:

Saying ‘We are terminating our business relationship’ when the strategy will be to argue that no such business relationship exists, but rather that there are separate and linked contracts (e.g., supply rather than ongoing distribution contract; very significant compensation consequences).

‘You no longer represent our company’, which may be evidence that you did so before.

‘As of day X, you may no longer act on behalf of our company,’ which would prove that you were previously able to act on its behalf.

‘You may not attend the X trade fair on our behalf.’ A way of confirming that the agent/distributor’s responsibilities included participating in trade fairs and probably accrediting the customers obtained.

‘The sales you promoted have been significantly reduced in year N.’ When there is no written contract or other form of documentation, imputing a breach of an obligation that is not clear can be counterproductive.

Saying ‘You are not actively promoting our products’ and then adding: ‘We urge you to stop promoting the sale of our products’.

‘You are no longer our exclusive representative’, which proves a type of relationship (representation/agent) and a tacit or express agreement (‘exclusivity’).

‘We have appointed another representative in your area’, which shows that the agent/distributor had an assigned area and was “representing”.

‘From this moment on, orders will be handled by X’, which also confirms a type of relationship.

 

In summary: from the moment the company considers terminating a commercial relationship, especially when it is not in writing and before sending any letter, it is advisable to think carefully about the strategy in case of a possible claim. This is the best time to seek advice and avoid surprises. Any communication that is not in line with this strategy designed from the outset can only lead to confusion and problems.

In Spain, companies can be incorporated by legal entities or persons of any nationality, residing in Spain or abroad.

Incorporation by a natural person

The foreign citizen who intends to incorporate a Spanish company, and is not a resident in Spain, must obtain a Foreigner Identification Number/ Tax Identification Number (NIE/NIF) prior to the incorporation of the company before a Notary Public.

To obtain a NIE/NIF, he/she must, alternatively: (i) appear before the Spanish Consulate in his/her country of residence, or (ii) apply for it before the Immigration Office/Police Station in Spain; in both cases personally or through a representative. The representation will be accredited with sufficient power of attorney, in which it is expressly stated that the representative is authorised to present the application to obtain the NIE.

Once the NIE has been obtained, it must be communicated to the Tax Agency by presenting a Form 030, a photocopy of the passport and a photocopy of the NIE. Once the NIE has been communicated to the Tax Agency, the foreign citizen can now appear before a Notary Public to notarise the Deed of Incorporation of the company, presenting the following documents:

  • The bylaws, with the minimum content required by Spanish law (Model Bylaws of a Public Limited Company, Model Bylaws of a Private Limited Company);
  • The negative certificate of denomination issued by the Central Mercantile Registry (reservation of name for the company);
  • In the case of monetary contributions, the deposit slip issued by the bank accrediting the disbursement of the initial contributions (or, if applicable, the corresponding amount in cash) is required. In the case of Limited Companies, the notary must provide bank proof of payment of a minimum of 3,000 euros, payment to be made directly by the individual who will be the owner of the company’s shares.
  • If the foreign citizen planning to incorporate the company does not appear personally before the Notary, they may do so through a representative. The original power of attorney granted to the representative, duly legalized (by apostille or document legalization) and accompanied by sworn translation, must be provided.
  • The original identification documents (national identity card or passport and NIE/TIE) of the persons who constitute the new company;
  • The foreign investment declaration duly completed. Although merely informative, this mandatory document must be filed with the Foreign Investment Registry of the Ministry of Economy and Competitiveness within one month of the New Company’s incorporation. The notary can take care of it if requested (Form D-1A).

Incorporation by a legal entity

The foreign company that plans to incorporate a Spanish company must obtain a Tax Identification Number before the incorporation, in front of a Notary Public, by submitting an application form (EX15).

This application for a NIF must be signed by a legal representative of the company who, in the event of not being a legal resident in Spain (Spanish or foreigner with a residence permit), must obtain a NIE as a non-resident beforehand.

If a foreign company grants power of attorney to a legal resident in Spain to obtain the company’s NIF, the Tax Agency requires that the grantor of the power of attorney also have an NIE as a non-resident. If he does not have a NIE, the Tax Administration can grant him a provisional NIE by means of form 030, together with a photocopy of his passport.

Once empowered, this legal representative of the foreign company must sign the application for the census form (form 036) and this application must be presented, in person, at the Tax Agency office, enclosing:

  • Census declaration (Form 036) signed by the person empowered by the foreign company requesting the NIF, and
  • Power of attorney granted by the authorized representative of the non-resident entity, duly notarized and legalized (see “Legalization and translation of documents”), in which a legal resident person is appointed as representative of the non-resident entity for the purpose of obtaining the NIF.

Once the foreign company is registered with the Tax Agency, it can proceed with the incorporation.

Introduction: A Paradigm Shift in Conflict Resolution

The approval of Organic Law 1/2025, of January 2, on measures for the efficiency of the Public Justice Service, marks a turning point in the Spanish judicial system. This legislation is not limited to introducing procedural changes, but reflects a profound transformation in the very concept of justice. The legislator has made a firm commitment to promoting alternatives to the judicial resolution of disputes, making prior negotiation a central element of the system.

The saturation of the courts, the costs associated with judicial proceedings, and the search for more satisfactory solutions for the parties have prompted this reform, which places the so-called “appropriate means of non-jurisdictional dispute resolution” as the cornerstone of a new justice model oriented towards dialogue and agreement.

The philosophy behind alternative means of dispute resolution

Beyond the decongestion of the courts, this reform responds to a philosophy that understands that not all conflicts necessarily require a judicial response. Alternative means of dispute resolution are based on the premise that many conflicts can find more satisfactory and lasting solutions, adapted to the needs and interests of the parties, when they actively participate in their construction.

Organic Law 1/2025 defines these means as “any type of negotiating activity, recognized in this or other laws, state or autonomous, to which the parties to a conflict resort in good faith with the aim of finding an extrajudicial solution to it, either by themselves or with the intervention of a neutral third party”. This broad and flexible definition is intended to cover various forms of negotiation whose common denominator is the protagonism of the parties in the resolution of their own disputes.

A range of possibilities: Diversity of mechanisms for diversity of conflicts

One of the most noteworthy aspects of the new regulation is that it does not rely on a single model of alternative dispute resolution but recognizes the diversity of situations and the need to offer different tools adapted to each particular case.

Mediation, already consolidated in our legal system through Law 5/2012, maintains its relevance as the preferred method, but other modalities such as conciliation in its various variants (notarial, registry, before a lawyer of the Administration of Justice or judicial), the opinion of independent experts, confidential binding offers, or the novel process of collaborative law are added to it.

This plurality of mechanisms reflects the complexity of contemporary legal relationships and the need to provide tailored responses to each type of conflict. Resolving a neighborhood dispute is not the same as resolving a complex business dispute, and the legislator has been aware that “one size fits all” would not be effective for the diversity of situations that may arise.

The controversial commitment to enforceability: The requirement of procedural validity

Undoubtedly, the most innovative -and probably the most controversial- aspect of the new regulation is the configuration of these means as a mandatory prerequisite for resorting to judicial proceedings in certain areas. This decision represents a qualitative leap with respect to the previous regulation, which mainly favored the voluntary nature of these mechanisms.

From the entry into force of Organic Law 1/2025, April 3, 2025, the claim in the civil jurisdictional order will not be admitted if it is not justified that the resolution of the conflict has been previously attempted by any of the recognized alternative ways. Not only that, but also the identity between the object of the previous negotiation and the object of the litigation to be initiated must be established.

This mandatory nature has been the subject of intense debate. Its advocates argue that it is necessary to promote cultural change in a traditionally litigious society, while its detractors warn of the risk of turning these mechanisms into mere formalities that distort their true purpose.

The truth is that the legislator has tried to find a balance, excluding from this obligation certain particularly sensitive matters or those which, by their nature, require an immediate judicial response. Thus, issues such as the judicial protection of fundamental rights, measures for the protection of minors, or the request for precautionary measures, among others, are exempted from the requirement of prior negotiation.

The guiding principles: Autonomy and confidentiality as pillars of the system

The effectiveness of alternative dispute resolution rests mainly on two fundamental principles: the autonomy of the parties and the confidentiality of the process.

The principle of private autonomy recognizes that the parties themselves best know their interests and needs and are, therefore, in the best position to find solutions adapted to their situation. The law establishes that the parties are free to settle, if they respect the law, good faith, and public policy. This freedom is essential for the solutions reached to be truly satisfactory and lasting.

The principle of confidentiality is crucial to creating a climate of trust that allows the parties to express themselves freely during the negotiation process. The law establishes that the information and documentation disclosed during the negotiation must be kept confidential, with very specific exceptions, such as express waivers by the parties, court orders in criminal matters, or reasons of public order.

This duty of confidentiality extends to all participants in the process: the parties, their lawyers, and, where appropriate, the neutral third party involved. The aim is to ensure that what is said or proposed during the negotiation cannot be used later in a possible judicial process, thus promoting a sincere and constructive dialogue.

The Negotiation Process: Relevant Procedural Aspects

The regulation of the procedural aspects of the different means of dispute resolution also reflects the legislator’s desire to combine the necessary flexibility with the minimum guarantees required.

As regards standing, the initiative to resort to these mechanisms may come from either party, from both by mutual agreement, or even from a judicial referral. This recognizes both the parties’ autonomy and the possibility that the judicial system itself may encourage the use of these alternative channels.

Regarding the involvement of professionals, the law generally prefers a non-mandatory approach to legal assistance, except in specific situations like the preparation of binding offers (with exceptions for smaller amounts). This flexibility aims to enhance access to these mechanisms; however, the complexity of many legal disputes often makes it wise to seek professional guidance.

A particularly relevant aspect is the effect that the request for these mechanisms has on the statute of limitations and expiration periods. The law establishes that such a request interrupts the statute of limitations or suspends the expiration of actions from the date of communication to the other party, thus avoiding the attempt of an amicable solution that may prejudice the rights of the party that promotes it.

In terms of form, the preferred method is face-to-face, although the use of telematic means is permitted by agreement of the parties or in the case of claims for amounts of less than 600 euros. This flexibility is particularly appropriate in a context of increasing digitalization of legal relations.

Specific Modalities: Diversity of mechanisms for diversity of conflicts

Among the different modalities recognized by the law, it is worthwhile to focus on some that present particularly novel or relevant characteristics.

Private conciliation involves the intervention of a person with technical or legal expertise related to the dispute’s subject matter. The law requires this person to be registered in a recognized professional association or in a register of mediators and to act impartially and confidentially. This mechanism takes advantage of the specialized knowledge of certain professionals to facilitate agreement in technically complex matters.

The confidential binding offer is a particularly interesting mechanism for certain types of disputes. One of the parties makes an offer that is binding on it in the event of acceptance by the other party. The law requires that the identity of the offeror, the actual receipt by the other party, and the detailed content of the offer be recorded. This instrument can be particularly useful in financial claims, where the main obstacle to settlement is often the amount.

The independent expert opinion consists of commissioning an opinion from an expert in the subject matter of the dispute. Unlike other mechanisms, this opinion is not binding, but may serve as a basis for agreement if the parties accept it, or at least to clarify the technical aspects of the dispute. Following the issuance of the opinion, the parties may accept it as an agreement, propose improvements or reject it, in which case the procedural requirement is deemed to be fulfilled.

Finally, the collaborative law process represents perhaps the most innovative aspect of the new regulation. It is a structured negotiation in which the parties, assisted by their respective lawyers, work together to reach a satisfactory solution, being able to integrate other professionals (psychologists, economists, etc.) when the complexity of the case requires it. At the end, minutes are drawn up with the participants, the sessions held and the agreements reached.

The challenge of implementation: From theory to practice

The real effectiveness of this new system will depend largely on how it is implemented in practice. It is not enough to make it compulsory to attempt out-of-court settlement; this attempt must be genuine and not become a mere formality.

In this regard, the law requires that the negotiation attempt be “real and credible; it cannot be fictitious.” To this end, it establishes documentation requirements that vary depending on whether or not a neutral third party is involved but always include a responsible statement that the parties have intervened in good faith in the process.

Likewise, the law regulates in detail when the negotiation process is understood to be concluded, whether it concludes with or without an agreement. In the event of an agreement, it must be formalized by identifying the parties and, if applicable, their lawyers and the neutral third party, indicating the place and date, as well as the obligations assumed by each party.

The possibility of converting the agreement into a public deed to convert it into an enforceable title reinforces its value and facilitates its compliance, avoiding the possibility of non-compliance with the agreement, forcing the initiation of a declaratory judicial proceeding.

A horizon to be explored: Perspectives and challenges

Organic Law 1/2025 represents a turning point in the conception of justice in Spain, bringing us closer to models already consolidated in other countries with a long tradition in alternative means of conflict resolution. The United States, Canada and the Nordic countries have been using these mechanisms for decades, with generally positive results in terms of user satisfaction and decongestion of the courts.

However, each legal system has its particularities, and the success of these mechanisms depends not only on their legal regulation but also on cultural, sociological, and organizational factors. Spanish society’s traditional litigiousness, the poor negotiating culture in certain areas, and the lack of specific training of many professionals are challenges that must be faced.

The commitment to obligatory nature as an initial impulse may be understandable in a context of paradigm change, but the real success of these mechanisms will come from their capacity to generate satisfactory solutions that will progressively make them the preferred option on their own merits, beyond their obligatory nature.

Conclusion: Between Hope and Caution

The new regulation of the appropriate means of non-jurisdictional dispute resolution is in line with a clear international trend towards the promotion of alternatives to judicial dispute resolution. This trend responds both to practical needs – decongesting the courts, reducing costs – and to a philosophy that values the protagonism of the parties in the management of their own conflicts.

In this sense, Spanish legislation joins a global movement that has shown positive results in many jurisdictions. However, only time will tell whether the legislative technique used, especially the commitment to mandatory nature as a procedural requirement, is the most appropriate to achieve the true purpose of encouraging agreement in order to avoid litigation.

The success of this reform will depend not only on its regulatory design, but also on factors such as adequate training of the professionals involved, public awareness of the advantages of these alternative routes, and the system’s capacity to evaluate and adapt according to the results obtained.

In short, we are facing an ambitious and necessary reform, which opens up a hopeful horizon but which will have to overcome important challenges in order to consolidate itself as a true paradigm shift in the administration of justice in Spain. The true criterion of success will not be the number of negotiation attempts made, but the quality of the agreements reached and the satisfaction of citizens with a more participatory, efficient justice system adapted to their real needs.

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.

Generative artificial intelligence (generative AI) is a variant of artificial intelligence aimed at creating models capable of generating new and original content. These models are trained to learn patterns and features from data sets, and can then generate similar or even completely new content based on those learned patterns.

A specific type of generative model is the generative neural network (GAN). GANs consist of two neural networks, one generative and one discriminative, working together. The generative network creates new content, while the discriminative network evaluates the authenticity of that content. The generative model can produce increasingly realistic results as these networks compete and improve.

Generative AI has applications in various areas, such as art creation, creative text generation, speech synthesis, and so on. It is also used in fields such as image enhancement and machine translation. This approach has advanced significantly in recent years and continues to be an active area of research in artificial intelligence.

Generative artificial intelligence applied to the legal sector involves using generative models to assist in various tasks and processes related to legal practice.

Positive aspects of generative AI applied to the legal sector

The integration of generative artificial intelligence in the legal field has emerged as a transformative catalyst, providing a number of significant benefits that positively impact the efficiency, accuracy, and accessibility of legal services. Throughout this evolution, several aspects highlight the substantial contribution of artificial intelligence to legal practice.

Some of these benefits are highlighted below:

Legal Document Drafting

Generative AI can be used to draft legal documents, contracts and other legal texts. It can generate content based on patterns learned from large sets of legal data, facilitating the creation of standard documents and reducing the workload for legal professionals, also ensuring consistency and accuracy in legal drafting, reducing risks associated with possible human errors.

Analysis of large volumes of data

The ability to process information at a speed and scale that surpasses human abilities enables the identification of patterns, trends and precedents with greater speed and accuracy. This advanced analysis helps strengthen legal arguments, improve strategic decision-making and provide clients with stronger legal representation.

Improved legal research

Generative artificial intelligence systems can perform faster and more accurate searches of legal databases, law libraries and case law. This streamlines the legal research process, providing professionals with access to relevant information more efficiently.

Legal Argument Generation

Generative IA can help generate sound legal arguments. By understanding case law and legal principles, it can help lawyers build better arguments and develop strategies for specific cases.

Automated Legal Advice

Automated legal advice systems can be developed that use generative AI to answer common legal questions and provide basic guidance. This could be useful for simpler legal queries and to improve access to legal information.

Personalized legal advice

Artificial intelligence can analyze case-specific data and provide personalized legal advice. This helps legal professionals make more informed and strategic decisions by considering situation-specific factors.

Legal Scenario Simulation

Generative AI can simulate legal scenarios to help lawyers evaluate possible outcomes and risks in particular cases. This could be useful in strategic decision-making and legal planning.

Automation of repetitive tasks

The ability of artificial intelligence systems to take on the workload related to standard document review and basic information management allows legal professionals to focus on more complex and strategic issues. This automation not only saves time but also decreases the likelihood of human error, thus strengthening the overall quality of legal work.

Optimization of internal processes

Artificial intelligence can significantly improve efficiency in case management, meeting scheduling, and other day-to-day operations in law firms. This optimization not only streamlines internal practices but also enables more efficient resource allocation and more effective workload management.

In short, the application of generative artificial intelligence in the legal sector transcends the mere automation of tasks, encompassing fundamental aspects that improve the quality and efficiency of legal services. From the automation of routine tasks to advanced data analysis and document generation, artificial intelligence is a powerful ally that drives positive developments in legal practice. This advancement not only improves the internal efficiency of law firms, but also strengthens the ability of legal professionals to provide accurate and strategic advice in an ever-changing legal environment.

While generative AI offers many possibilities, its implementation in the legal sector must be approached cautiously to ensure accuracy, ethics, and compliance with applicable laws and regulations. Human intervention and legal oversight remain essential to ensure quality and accountability in using these technologies.

Negative aspects of the application of generative AI to the legal sector

While promising, the integration of generative artificial intelligence in the legal sector poses a number of challenges and negative aspects that require attention and careful consideration. Despite significant advances in automation and process improvement, addressing the following adverse aspects is crucial to ensure an ethical and effective implementation.

Lack of human discernment

Although artificial intelligence systems can analyze data at impressive speed, they lack human understanding and sensitivity. Interpreting legal nuances, understanding emotional contexts, and making decisions based on ethics are skills intrinsic to legal professionals. Over-reliance on technology in interpreting complex situations could result in inadequate or insensitive assessments.

Risk of algorithmic bias

Algorithms used in generative artificial intelligence are trained on historical data, and if that data contains cultural, ethnic, or gender biases, the results generated may reflect and perpetuate those biases. This raises ethical and legal concerns, as automated decisions could be inherently discriminatory, affecting fairness and justice in the legal system.

Data security and privacy

The implementation of artificial intelligence in the legal field involves handling highly confidential information. Systems’ vulnerability to cyber attacks could expose sensitive data, compromising the confidentiality and integrity of the legal system. Good protection against cyber threats is essential to maintaining confidence in these technologies.

Job displacement

As artificial intelligence takes over routine and repetitive tasks, there is a risk that certain jobs in the legal sector will be affected. This raises questions about role restructuring and the need for legal professionals to acquire new skills to adapt to a changing work environment. The ethics of this displacement and measures to mitigate its impacts must be carefully addressed.

Ethical complexity in decision making

Generative artificial intelligence algorithms often operate opaquely, meaning that the logic behind their decisions can be difficult to understand or explain. This raises ethical questions about accountability and transparency in legal decision-making, especially in critical cases where a clear explanation of decisions is critical.

Costs associated with implementation

From initial development to ongoing training and system maintenance, law firms, especially smaller ones, can face significant financial challenges. This raises the issue of equity in access to these technologies and the need to seek solutions that do not perpetuate inequities in the legal system.

Cultural resistance and adaptation

Cultural resistance and adaptation are factors that should not be overlooked. The introduction of generative artificial intelligence may encounter resistance among legal professionals who may be reluctant to rely on emerging technologies. Organizational culture and acceptance of these tools may require time and effort for successful implementation. Training and effective communication are essential to overcome these barriers.

In conclusion, the application of generative artificial intelligence in the legal sector, while offering significant benefits, is not without its challenges. Addressing the lack of human discernment, mitigating the risk of algorithmic bias, ensuring data security and privacy, managing labor displacement, addressing ethical complexity in decision making, and managing associated costs are imperative for ethical and effective implementation. Careful thought and appropriate regulation are essential to harness the benefits of artificial intelligence without compromising fundamental principles of fairness and justice in the legal system.

The Commercial Court No. 17 of Madrid has ruled in the SuperLiga case following the guidelines set by the CJEU in its decision of December 21 last year.

The lawsuit was filed by ESCL, an entity formed by Real Madrid and other soccer clubs to promote the SuperLiga, most of which abandoned the project due to pressure from fans and their governments against FIFA and UEFA, with RFEF and La Liga voluntarily joining the defendants.

As usually happens with elections, but not with sentences, everyone, plaintiffs and defendants, has shown their satisfaction with this ruling, which is not yet final, as it can be appealed before the Provincial Court of Madrid.

In brief, the proceedings involved whether the FIFA/UEFA regulations on the organization and authorization of soccer competitions and the management of the rights deriving from such competitions were in accordance with Community competition law, articles 101 and 102 of the TFEU.

The CJEU judgment of last December had already ruled that the regulatory rules of FIFA and UEFA relating to prior authorization and participation, which give these entities the power to prevent any competing company from accessing the market, constitute an abuse of a dominant position and infringe the provisions of Articles 101 and 102 TFEU, mainly because they are not accompanied by certain limits and controls guaranteeing transparency and objectivity in the decision not to authorize such international competitions, which allow the risk of abuse of a dominant position to be excluded.

Likewise, the Court of Justice, using the same arguments and about the exploitation rights deriving from sporting competitions, states that the FIFA and UEFA rules are contrary to the provisions of Articles 101 and 102 TFEU, since they attribute to themselves exclusive responsibility for the marketing of the rights in question.

Following the guidelines set by the CJEU judgment, the judgment of Madrid Commercial Court No. 17 partially upheld the lawsuit filed by ESLC against UEFA and FIFA. It declared that both organizations have abused their dominant position and are preventing free competition in the market by granting themselves the discretionary power to prohibit participation in alternative competitions and impose unjustified and disproportionate restrictions, conduct that infringes Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

The ruling condemns FIFA and UEFA to cease the anticompetitive conduct sanctioned and prohibits them from repeating them in the future. It also condemns them to immediately remove all the effects of the anticompetitive actions that occurred before or during the duration of the lawsuit, which began on April 18, 2021, when ESLC announced the launch of the SupeLiga.

Finally, the judgment states that the content of the declarations issued by FIFA, UEFA and other entities (including the federations and leagues of England, Italy and Spain, some of whose clubs were part of the project) on April 18, 2021 (referred to in the lawsuit as the ‘Declaration’) in relation to the pan-European international competition project, also infringes Articles 101 and 102 TFEU.

It should be noted that the judgment expressly states that “inasmuch as the SuperLiga in the terms initially set forth in the lawsuit, i.e. in accordance with the initial project has been abandoned and discarded by the promoters themselves, the motions in relation thereto must likewise lapse; it is not possible to impose a prohibition or restriction in the abstract, i.e. to impose a prohibition in the future of any other project or modification of the one already presented”.

Based on this argument, the Judgment rejects the requests included in section f) of the lawsuit which, in summary, requested that FIFA and UEFA be ordered to refrain from any conduct, measure, or action or issue any statement that prevents or hinders in any way the preparation of the SuperLiga; and the commercial judge concludes by stating in this regard that the purpose of these proceedings is not “the authorization of any competition, but to lay the foundations to channel a system of free competition for the organization of soccer competitions”.

Thereafter, everyone is happy with the result; La Liga issued a statement stressing that the ruling does not endorse a project which, moreover, according to the same ruling, has been abandoned by its promoters. UEFA says that it is pleased to note that the judge has given a good and valid system of prior authorization for third-party competitions to be approved in accordance with UEFA’s authorization rules and has recognized the undoubted benefits of these rules for the soccer sporting system, concluding that “the judgment does not give third parties the right to develop competitions without authorization and does not refer to any future project or to any modified version of an existing project”.

The plaintiffs, too, are happy and content to proclaim that UEFA’s statutes and the aggressive measures taken to protect its monopoly have stifled innovation for decades. Clubs should not have to fear threats of sanctions simply for having ideas and having conversations. The era of monopoly is definitely over.

Rarely does one find that a judgment leaves all the litigants so happy and content, but that seems to be the case here. Or at least that is what all of them have been interested in communicating, when the harsh reality is, on the one hand, that the SuperLiga project as it was structured when the lawsuit started and FIFA/UEFA reacted furiously, is dead and buried, and on the other hand, that the happy world in which FIFA and UEFA regulated soccer and competitions as a private preserve, considered themselves immune and alien to ordinary justice and shared the money generated without being accountable to the Courts of Justice and threatened to expel or expel the rebellious spirits, has come to an end.

Commercial agents have specific regulations with rights and obligations that are “mandatory”: those who sign an agency contract cannot derogate from them. Answering whether an influencer can be an agent is essential because, if he or she is an agent, the agent regulations will apply to him or her.

Let’s take it one step at a time. The influencer we will talk about is the person who, with their actions and comments (blogs, social media accounts, videos, events, or a bit of everything), talks to their followers about the advantages of certain products or services identified with a certain third-party brand. In exchange for this, the influencer is paid.[1]

A commercial agent is someone who promotes the contracting of others’ products or services, does so in a stable way, and gets paid in return. He or she can also conclude the contract, but this is not essential.

The law imposes certain obligations and guarantees rights to those signing an agency contract. If the influencer is considered an “agent”, he or she should also have them. And there are several of them: for example, the duration, the notice to be given to terminate the contract, the obligations of the parties… And the most relevant, the right of the agent to receive compensation at the end of the relationship for the clientele that has been generated. If an influencer is an agent, he would also have this right.

How can an influencer be assessed as an agent? For that we must analyse two things: (a) the contract (and be careful because there is a contract, even if it is not written) and (b) how the parties have behaved.

The elements that, in my opinion, are most relevant to conclude that an influencer is an agent would be the following:

 

a) the influencer promotes the contracting of services or the purchase of products and does so independently.

The contract will indicate what the influencer must do. It will be clearer to consider him as an agent if his comments encourage contracting: for example, if they include a link to the manufacturer’s website, if he offers a discount code, if he allows orders to be placed with him. And if he does so as an independent “professional”, and not as an employee (with a timetable, means, instructions).

It may be more difficult to consider him as an agent if he limits himself to talking about the benefits of the product or service, appearing in advertising as a brand image, and using a certain product, and speaking well of it. The important thing, in my opinion, is to examine whether the influencer’s activity is aimed at getting people to buy the product he or she is talking about, or whether what he or she is doing is more generic persuasion (appearing in advertising, lending his or her image to a product, carrying out demonstrations of its use), or even whether he or she is only seeking to promote himself or herself as a vehicle for general information (for example, influencers who make comparisons of products without trying to get people to buy one or the other). In the first case (trying to get people to buy the product) it would be easier to consider it as an “agent”, and less so in the other examples.

 

b) this “promotion” is done in a continuous or stable manner.

Be careful because this continuity or stability does not mean that the contract has to be of indefinite duration. Rather, it is the opposite of a sporadic relationship. A one-year contract may be sufficient, while several unconnected interventions, even if they last longer, may not be sufficient.

In this case, influencers who make occasional comments, who intervene with isolated actions, who limit themselves to making comparisons without promoting the purchase of one or the other, and even if all this leads to sales, even if their comments are frequent and even if they can have a great influence on the behavior of their followers, would be excluded as agents.

 

c) they receive remuneration for their activity.

An influencer who is remunerated based on sales (e.g., by promoting a discount code, a specific link, or referring to your website for orders) can more easily be considered as an agent. But also, if he or she only receives a fixed amount for their promotion. On the other hand, influencers who do not receive any remuneration from the brand (e.g. someone who talks about the benefits of a product in comparison with others, but without linking it to its promotion) would be excluded.

 

Conclusion

The borderline between what qualifies an influencer as an agent and what does not can be very thin, especially because contracts are often not unambiguous and sometimes their services are multiple. The most important thing is to carefully analyse the contract and the parties’ behaviour.

An influencer could be considered a commercial agent to the extent that his or her activity promotes the contracting of the product (not simply if he or she carries out informative or image work), that it is done on a stable basis (and not merely anecdotal or sporadic) and in exchange for remuneration.

To assess the specific situation, it is essential to analyse the contract (if it is written, this is easier) and the parties’ behaviour.

In short, to draw up a contract with an influencer or, if it has already been signed, but you want to conclude it, you will have to pay attention to these elements. As an influencer you may have a strong interest in being considered an agent at the end of the contract and thus be entitled to compensation, while as employer you will prefer the opposite.

FINAL NOTE. In Spain and at the date of this comment (9 June 2024) I am not aware of any judgement dealing with this issue. My proposal is based on my experience of more than 30 years advising and litigating on agency contracts. On the other hand, and as far as I know, there is at least one judgment in Rome (Italy) dealing with the matter: Tribunale di Roma; Sezione Lavoro 4º, St. 2615 of 4 March 2024; R. G. n. 38445/2022.

Ignacio Alonso

Practice areas

  • Agency
  • Corporate
  • Distribution
  • Franchising
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    How to incorporate a company in Spain

    24 June 2025

    • Spain
    • Corporate

    The increase in so-called cybercrime in recent years is so significant that it requires strong legislative and judicial responses. Losses from online fraud in Europe exceed $100 billion, according to Nasdaq Ventures, of which $5 billion correspond to Spain.

    In Spain, 192,375 cases of computer fraud were reported in 2019, but by 2023 this figure had risen to 427,448. According to the latest official data available, computer fraud accounts for 90.4% of all cybercrimes, with growth of 378% between 2016 and 2023.

    There are many different types of computer fraud, and they are named in English (after all, the lingua franca of our time), including, among other ingenious methods used by skilled fraudsters, those with curious and amusing names (except for those who suffer from them) such as phishing, pharming, juice jacking, tabnabbing, bluesnarfing, catfishing, spoofing, vishing, smishing, whaling, carding, and the one we are interested in today, man in the middle (MITM).

    Man in the Middle scam: how it works

    This MITM fraud involves intercepting communications between two devices connected to a network, allowing the attacker to alter and divert messages exchanged between users. The fraudster intercepts a communication in which one user requests a payment from another and then modifies the IBAN of the bank account to which the transfer should be made in order to obtain the money. The process generally unfolds as follows:

    • Without the company noticing, an attacker intercepts and manipulates an email, changing the IBAN number of the account to which the payment should be made.
    • The cybercriminal impersonates the supplier, sending the message from an email address that is almost identical to the original, but with a slight alteration that is almost imperceptible.
    • The receiving company, trusting the authenticity of the message, makes the transfer to the fraudulent account.

     

    This results in a transfer of assets to the detriment of the person ordering the transfer and in favor of the cyber thief, so that when the person ordering the transfer notices the error, their first reaction is to try to contact the receiving bank in the hope that the funds can be blocked in time. However, in most cases, the cybercriminal has been quicker: the money has already been transferred to another account or withdrawn, leaving little room for maneuvering, except for the initiation of legal proceedings, which we will discuss below.

    The immediate question is what responsibility the bank that has received the transfer order from the deceived user and credits the cyber fraudster’s account with the amount in question has in cases where the payer identifies not only the (fraudulent) IBAN but also the name of the beneficiary of the payment order, which obviously does not match the name of the holder of the bank account receiving the funds.

    The common-sense answer would be that the bank receiving the transfer should confirm that the holder of the account to which the funds are credited and the individual or entity identified as the beneficiary in the transfer order match; if this is not the case, it should suspend the payment and request clarification from the payer. However, this is not the case in light of EU legislation and its transposition into Spanish law, as we will see below.

    Until October 9, the European banking system operated under the premise that the validity of a transfer was based exclusively on the correctness of the IBAN. In other words, if the account number was correct, the transaction was considered valid, even if the beneficiary’s name did not match. This practice has led to numerous cases of fraud, unintentional errors, and loss of funds, especially in instant transfers, where speed can compromise security.

    The most reasonable option for the defrauded payer to recover their money is to sue the bank receiving the payment order (with which they have no contractual relationship) for non-contractual liability under Article 1124 of the Civil Code; in fact, criminal proceedings against the account holder, who is usually referred to in slang as a “mule,” do not usually have a satisfactory outcome, both because the bird usually flies away and because of its lack of solvency.

    The case law of the Provincial Courts has been divided between rulings that strictly and faithfully applied Article 59 of Royal Decree-Law 19/2018 of November 23, on payment services and other urgent financial measures, dismissing the claims of those defrauded, and others in which arguments were sought under the premise of lack of diligence to condemn the bank to compensate the payer.

    This has led to the establishment of quasi-objective liability for banks in relation to digital fraud, imposing a higher standard of diligence on them and transferring the risk inherent in online banking to them, except in cases of willful misconduct or gross negligence on the part of the customer. This line of reasoning, which has been developed from lower court rulings (AP Madrid 178/2015; AP Alicante 107/2018; AP Valencia 212/2021) to the Supreme Court itself (STS 571/2025, among others), is in line with the idea that it is up to the bank to prove that its systems were secure, up to date, and sufficient to prevent the crime from being committed.

    In this context, the concept of bonus argentarius takes on renewed relevance. This is a principle that was included in Law 57/68 to protect home buyers in the real estate sector, but the Supreme Court has ruled on several occasions that it can also be applied to other financial investments. This means that, in the event of losses due to negligence on the part of the financial institution, the customer can file a claim under Law 57/68 and hold the institution liable.

    The bonus argentarius is based on the presumption of fault on the part of the financial institution, which means that even if the customer has no concrete evidence of negligence, it is assumed due to the duty of care that the institution must exercise in the management of investments.

    Based on this principle, the diligence required of financial professionals is not that of the average trader or pater familias, but that of a qualified expert who assumes the obligation to protect the funds entrusted to them by implementing “necessary and renewable” security mechanisms. This implies not only maintaining basic technical measures for enhanced authentication, but also proactively adopting internationally recognized anti-fraud solutions, such as name-IBAN verification (Confirmation of Payee or IBAN-Naam Check), which have proven effective in comparable jurisdictions.

    In line with that doctrine and case law, it can be said that the omission of beneficiary verification measures today constitutes a breach of the contractual duty of diligence and good faith (Articles 1104 and 1258 of the Civil Code), giving rise to civil liability for the damage caused, such that MITM fraud cannot be considered a residual risk attributable to the customer, but rather a systemic security failure attributable to the financial institution, as the designer and custodian of the electronic payment channel.

    In this state of affairs, the Supreme Court, in its recent ruling of March 27, 2025, opted for the alternative of strict application of Article 59, arguing that “if the payment service user provides additional information to that required (specification of the information or unique identifier that the payment service user must provide for the correct initiation or execution of a payment order), the payment service provider shall only be liable for the execution of payment transactions in accordance with the unique identifier provided by the payment service user… and that the liability of the payment service provider, both at Community and national level, is such that it fulfills its obligation by executing the payment transaction in accordance with the unique identifier, without the addition of further information implying a higher standard of diligence

    It is true that, in conclusion, the Supreme Court offered a glimmer of hope to defrauded users when it stated that “the interpretation set out above does not exempt the payment service provider from liability when circumstances, unrelated to the provision of additional data, are found to have contributed to the defective execution of the transaction, either because an additional requirement or demand (e.g., the identification of the beneficiary), or because the payment service provider of the payer or the beneficiary had taken advantage of the error for their own benefit, or because, once the existence of the error had been communicated without delay, one or the other had not taken the measures required by the diligence of an expert trader to allow retroaction or, where appropriate, to minimize the damage.”

    Regulation (EU) 2024/886: a paradigm shift

    And in this scenario fraught with doubts, Regulation (EU) 2024/886 bursts onto the scene, representing a 180-degree turn and a paradigm shift: the new European Regulation, approved in April 2024 and coming into force on October 9, 2025, establishes a clear obligation for banks: they must verify that the name of the beneficiary provided by the payer matches the IBAN holder before executing an immediate transfer in euros.

    The new features of this regulation are

    • mandatory application to all instant transfers within the SEPA area,
    • the new name matching system: if there is a discrepancy between the name and the IBAN, the bank must alert the customer before executing the transaction, and
    • increased liability for financial institutions in the event of fraud or error due to lack of verification.

    In short, the aim is to reduce the risk of fraud, protect consumers, and increase confidence in digital payments.

    This means that Law 19/2018, which regulates payment services in Spain and does not require verification of the beneficiary’s identity, is now outdated, underscoring the need for a national legislative review to harmonize the legal framework with European requirements.

    In conclusion, the obligation to verify the beneficiary of transfers represents a significant step forward in consumer protection and the fight against financial fraud. Regulation (EU) 2024/886 marks a turning point in banking operations, imposing an active responsibility on institutions to ensure the authenticity of transfers.

    In any case, the question remains open regarding the solution to MITM frauds executed before October 9, 2025, and the responsibility of the banking institution. For the time being, the aforementioned Supreme Court ruling of March 27 closes the door to claims against banks, but it cannot be ruled out that the entry into force of Regulation 2024/886 and the paradigm shift will lead to a rethinking of the Supreme Court’s position in line with the quasi-objective liability that lower courts have been maintaining. We will have to wait and see, but such a change would be a great success for bank users who have suffered from this MITM fraud and all other types of cyber fraud.

    It is quite common for business relationships with agents or distributors to last for years without any signed documents. And be careful, because we know that a contract can exist even verbally.

    The absence of a written contract will add difficulties in the event of a possible claim, so what you do between the decision to terminate, and the moment of the claim is very important. Remember: ‘anything you write will be used against you’.

    The decision to terminate a business relationship is a very delicate moment to which, for some reason, solicitors are not invited. Here are some examples (all real) in which companies or employees with the best of intentions wrote to the agent/distributor. All of them were subsequently very damaging to the company:

    Saying ‘We are terminating our business relationship’ when the strategy will be to argue that no such business relationship exists, but rather that there are separate and linked contracts (e.g., supply rather than ongoing distribution contract; very significant compensation consequences).

    ‘You no longer represent our company’, which may be evidence that you did so before.

    ‘As of day X, you may no longer act on behalf of our company,’ which would prove that you were previously able to act on its behalf.

    ‘You may not attend the X trade fair on our behalf.’ A way of confirming that the agent/distributor’s responsibilities included participating in trade fairs and probably accrediting the customers obtained.

    ‘The sales you promoted have been significantly reduced in year N.’ When there is no written contract or other form of documentation, imputing a breach of an obligation that is not clear can be counterproductive.

    Saying ‘You are not actively promoting our products’ and then adding: ‘We urge you to stop promoting the sale of our products’.

    ‘You are no longer our exclusive representative’, which proves a type of relationship (representation/agent) and a tacit or express agreement (‘exclusivity’).

    ‘We have appointed another representative in your area’, which shows that the agent/distributor had an assigned area and was “representing”.

    ‘From this moment on, orders will be handled by X’, which also confirms a type of relationship.

     

    In summary: from the moment the company considers terminating a commercial relationship, especially when it is not in writing and before sending any letter, it is advisable to think carefully about the strategy in case of a possible claim. This is the best time to seek advice and avoid surprises. Any communication that is not in line with this strategy designed from the outset can only lead to confusion and problems.

    In Spain, companies can be incorporated by legal entities or persons of any nationality, residing in Spain or abroad.

    Incorporation by a natural person

    The foreign citizen who intends to incorporate a Spanish company, and is not a resident in Spain, must obtain a Foreigner Identification Number/ Tax Identification Number (NIE/NIF) prior to the incorporation of the company before a Notary Public.

    To obtain a NIE/NIF, he/she must, alternatively: (i) appear before the Spanish Consulate in his/her country of residence, or (ii) apply for it before the Immigration Office/Police Station in Spain; in both cases personally or through a representative. The representation will be accredited with sufficient power of attorney, in which it is expressly stated that the representative is authorised to present the application to obtain the NIE.

    Once the NIE has been obtained, it must be communicated to the Tax Agency by presenting a Form 030, a photocopy of the passport and a photocopy of the NIE. Once the NIE has been communicated to the Tax Agency, the foreign citizen can now appear before a Notary Public to notarise the Deed of Incorporation of the company, presenting the following documents:

    • The bylaws, with the minimum content required by Spanish law (Model Bylaws of a Public Limited Company, Model Bylaws of a Private Limited Company);
    • The negative certificate of denomination issued by the Central Mercantile Registry (reservation of name for the company);
    • In the case of monetary contributions, the deposit slip issued by the bank accrediting the disbursement of the initial contributions (or, if applicable, the corresponding amount in cash) is required. In the case of Limited Companies, the notary must provide bank proof of payment of a minimum of 3,000 euros, payment to be made directly by the individual who will be the owner of the company’s shares.
    • If the foreign citizen planning to incorporate the company does not appear personally before the Notary, they may do so through a representative. The original power of attorney granted to the representative, duly legalized (by apostille or document legalization) and accompanied by sworn translation, must be provided.
    • The original identification documents (national identity card or passport and NIE/TIE) of the persons who constitute the new company;
    • The foreign investment declaration duly completed. Although merely informative, this mandatory document must be filed with the Foreign Investment Registry of the Ministry of Economy and Competitiveness within one month of the New Company’s incorporation. The notary can take care of it if requested (Form D-1A).

    Incorporation by a legal entity

    The foreign company that plans to incorporate a Spanish company must obtain a Tax Identification Number before the incorporation, in front of a Notary Public, by submitting an application form (EX15).

    This application for a NIF must be signed by a legal representative of the company who, in the event of not being a legal resident in Spain (Spanish or foreigner with a residence permit), must obtain a NIE as a non-resident beforehand.

    If a foreign company grants power of attorney to a legal resident in Spain to obtain the company’s NIF, the Tax Agency requires that the grantor of the power of attorney also have an NIE as a non-resident. If he does not have a NIE, the Tax Administration can grant him a provisional NIE by means of form 030, together with a photocopy of his passport.

    Once empowered, this legal representative of the foreign company must sign the application for the census form (form 036) and this application must be presented, in person, at the Tax Agency office, enclosing:

    • Census declaration (Form 036) signed by the person empowered by the foreign company requesting the NIF, and
    • Power of attorney granted by the authorized representative of the non-resident entity, duly notarized and legalized (see “Legalization and translation of documents”), in which a legal resident person is appointed as representative of the non-resident entity for the purpose of obtaining the NIF.

    Once the foreign company is registered with the Tax Agency, it can proceed with the incorporation.

    Introduction: A Paradigm Shift in Conflict Resolution

    The approval of Organic Law 1/2025, of January 2, on measures for the efficiency of the Public Justice Service, marks a turning point in the Spanish judicial system. This legislation is not limited to introducing procedural changes, but reflects a profound transformation in the very concept of justice. The legislator has made a firm commitment to promoting alternatives to the judicial resolution of disputes, making prior negotiation a central element of the system.

    The saturation of the courts, the costs associated with judicial proceedings, and the search for more satisfactory solutions for the parties have prompted this reform, which places the so-called “appropriate means of non-jurisdictional dispute resolution” as the cornerstone of a new justice model oriented towards dialogue and agreement.

    The philosophy behind alternative means of dispute resolution

    Beyond the decongestion of the courts, this reform responds to a philosophy that understands that not all conflicts necessarily require a judicial response. Alternative means of dispute resolution are based on the premise that many conflicts can find more satisfactory and lasting solutions, adapted to the needs and interests of the parties, when they actively participate in their construction.

    Organic Law 1/2025 defines these means as “any type of negotiating activity, recognized in this or other laws, state or autonomous, to which the parties to a conflict resort in good faith with the aim of finding an extrajudicial solution to it, either by themselves or with the intervention of a neutral third party”. This broad and flexible definition is intended to cover various forms of negotiation whose common denominator is the protagonism of the parties in the resolution of their own disputes.

    A range of possibilities: Diversity of mechanisms for diversity of conflicts

    One of the most noteworthy aspects of the new regulation is that it does not rely on a single model of alternative dispute resolution but recognizes the diversity of situations and the need to offer different tools adapted to each particular case.

    Mediation, already consolidated in our legal system through Law 5/2012, maintains its relevance as the preferred method, but other modalities such as conciliation in its various variants (notarial, registry, before a lawyer of the Administration of Justice or judicial), the opinion of independent experts, confidential binding offers, or the novel process of collaborative law are added to it.

    This plurality of mechanisms reflects the complexity of contemporary legal relationships and the need to provide tailored responses to each type of conflict. Resolving a neighborhood dispute is not the same as resolving a complex business dispute, and the legislator has been aware that “one size fits all” would not be effective for the diversity of situations that may arise.

    The controversial commitment to enforceability: The requirement of procedural validity

    Undoubtedly, the most innovative -and probably the most controversial- aspect of the new regulation is the configuration of these means as a mandatory prerequisite for resorting to judicial proceedings in certain areas. This decision represents a qualitative leap with respect to the previous regulation, which mainly favored the voluntary nature of these mechanisms.

    From the entry into force of Organic Law 1/2025, April 3, 2025, the claim in the civil jurisdictional order will not be admitted if it is not justified that the resolution of the conflict has been previously attempted by any of the recognized alternative ways. Not only that, but also the identity between the object of the previous negotiation and the object of the litigation to be initiated must be established.

    This mandatory nature has been the subject of intense debate. Its advocates argue that it is necessary to promote cultural change in a traditionally litigious society, while its detractors warn of the risk of turning these mechanisms into mere formalities that distort their true purpose.

    The truth is that the legislator has tried to find a balance, excluding from this obligation certain particularly sensitive matters or those which, by their nature, require an immediate judicial response. Thus, issues such as the judicial protection of fundamental rights, measures for the protection of minors, or the request for precautionary measures, among others, are exempted from the requirement of prior negotiation.

    The guiding principles: Autonomy and confidentiality as pillars of the system

    The effectiveness of alternative dispute resolution rests mainly on two fundamental principles: the autonomy of the parties and the confidentiality of the process.

    The principle of private autonomy recognizes that the parties themselves best know their interests and needs and are, therefore, in the best position to find solutions adapted to their situation. The law establishes that the parties are free to settle, if they respect the law, good faith, and public policy. This freedom is essential for the solutions reached to be truly satisfactory and lasting.

    The principle of confidentiality is crucial to creating a climate of trust that allows the parties to express themselves freely during the negotiation process. The law establishes that the information and documentation disclosed during the negotiation must be kept confidential, with very specific exceptions, such as express waivers by the parties, court orders in criminal matters, or reasons of public order.

    This duty of confidentiality extends to all participants in the process: the parties, their lawyers, and, where appropriate, the neutral third party involved. The aim is to ensure that what is said or proposed during the negotiation cannot be used later in a possible judicial process, thus promoting a sincere and constructive dialogue.

    The Negotiation Process: Relevant Procedural Aspects

    The regulation of the procedural aspects of the different means of dispute resolution also reflects the legislator’s desire to combine the necessary flexibility with the minimum guarantees required.

    As regards standing, the initiative to resort to these mechanisms may come from either party, from both by mutual agreement, or even from a judicial referral. This recognizes both the parties’ autonomy and the possibility that the judicial system itself may encourage the use of these alternative channels.

    Regarding the involvement of professionals, the law generally prefers a non-mandatory approach to legal assistance, except in specific situations like the preparation of binding offers (with exceptions for smaller amounts). This flexibility aims to enhance access to these mechanisms; however, the complexity of many legal disputes often makes it wise to seek professional guidance.

    A particularly relevant aspect is the effect that the request for these mechanisms has on the statute of limitations and expiration periods. The law establishes that such a request interrupts the statute of limitations or suspends the expiration of actions from the date of communication to the other party, thus avoiding the attempt of an amicable solution that may prejudice the rights of the party that promotes it.

    In terms of form, the preferred method is face-to-face, although the use of telematic means is permitted by agreement of the parties or in the case of claims for amounts of less than 600 euros. This flexibility is particularly appropriate in a context of increasing digitalization of legal relations.

    Specific Modalities: Diversity of mechanisms for diversity of conflicts

    Among the different modalities recognized by the law, it is worthwhile to focus on some that present particularly novel or relevant characteristics.

    Private conciliation involves the intervention of a person with technical or legal expertise related to the dispute’s subject matter. The law requires this person to be registered in a recognized professional association or in a register of mediators and to act impartially and confidentially. This mechanism takes advantage of the specialized knowledge of certain professionals to facilitate agreement in technically complex matters.

    The confidential binding offer is a particularly interesting mechanism for certain types of disputes. One of the parties makes an offer that is binding on it in the event of acceptance by the other party. The law requires that the identity of the offeror, the actual receipt by the other party, and the detailed content of the offer be recorded. This instrument can be particularly useful in financial claims, where the main obstacle to settlement is often the amount.

    The independent expert opinion consists of commissioning an opinion from an expert in the subject matter of the dispute. Unlike other mechanisms, this opinion is not binding, but may serve as a basis for agreement if the parties accept it, or at least to clarify the technical aspects of the dispute. Following the issuance of the opinion, the parties may accept it as an agreement, propose improvements or reject it, in which case the procedural requirement is deemed to be fulfilled.

    Finally, the collaborative law process represents perhaps the most innovative aspect of the new regulation. It is a structured negotiation in which the parties, assisted by their respective lawyers, work together to reach a satisfactory solution, being able to integrate other professionals (psychologists, economists, etc.) when the complexity of the case requires it. At the end, minutes are drawn up with the participants, the sessions held and the agreements reached.

    The challenge of implementation: From theory to practice

    The real effectiveness of this new system will depend largely on how it is implemented in practice. It is not enough to make it compulsory to attempt out-of-court settlement; this attempt must be genuine and not become a mere formality.

    In this regard, the law requires that the negotiation attempt be “real and credible; it cannot be fictitious.” To this end, it establishes documentation requirements that vary depending on whether or not a neutral third party is involved but always include a responsible statement that the parties have intervened in good faith in the process.

    Likewise, the law regulates in detail when the negotiation process is understood to be concluded, whether it concludes with or without an agreement. In the event of an agreement, it must be formalized by identifying the parties and, if applicable, their lawyers and the neutral third party, indicating the place and date, as well as the obligations assumed by each party.

    The possibility of converting the agreement into a public deed to convert it into an enforceable title reinforces its value and facilitates its compliance, avoiding the possibility of non-compliance with the agreement, forcing the initiation of a declaratory judicial proceeding.

    A horizon to be explored: Perspectives and challenges

    Organic Law 1/2025 represents a turning point in the conception of justice in Spain, bringing us closer to models already consolidated in other countries with a long tradition in alternative means of conflict resolution. The United States, Canada and the Nordic countries have been using these mechanisms for decades, with generally positive results in terms of user satisfaction and decongestion of the courts.

    However, each legal system has its particularities, and the success of these mechanisms depends not only on their legal regulation but also on cultural, sociological, and organizational factors. Spanish society’s traditional litigiousness, the poor negotiating culture in certain areas, and the lack of specific training of many professionals are challenges that must be faced.

    The commitment to obligatory nature as an initial impulse may be understandable in a context of paradigm change, but the real success of these mechanisms will come from their capacity to generate satisfactory solutions that will progressively make them the preferred option on their own merits, beyond their obligatory nature.

    Conclusion: Between Hope and Caution

    The new regulation of the appropriate means of non-jurisdictional dispute resolution is in line with a clear international trend towards the promotion of alternatives to judicial dispute resolution. This trend responds both to practical needs – decongesting the courts, reducing costs – and to a philosophy that values the protagonism of the parties in the management of their own conflicts.

    In this sense, Spanish legislation joins a global movement that has shown positive results in many jurisdictions. However, only time will tell whether the legislative technique used, especially the commitment to mandatory nature as a procedural requirement, is the most appropriate to achieve the true purpose of encouraging agreement in order to avoid litigation.

    The success of this reform will depend not only on its regulatory design, but also on factors such as adequate training of the professionals involved, public awareness of the advantages of these alternative routes, and the system’s capacity to evaluate and adapt according to the results obtained.

    In short, we are facing an ambitious and necessary reform, which opens up a hopeful horizon but which will have to overcome important challenges in order to consolidate itself as a true paradigm shift in the administration of justice in Spain. The true criterion of success will not be the number of negotiation attempts made, but the quality of the agreements reached and the satisfaction of citizens with a more participatory, efficient justice system adapted to their real needs.

    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.

    Generative artificial intelligence (generative AI) is a variant of artificial intelligence aimed at creating models capable of generating new and original content. These models are trained to learn patterns and features from data sets, and can then generate similar or even completely new content based on those learned patterns.

    A specific type of generative model is the generative neural network (GAN). GANs consist of two neural networks, one generative and one discriminative, working together. The generative network creates new content, while the discriminative network evaluates the authenticity of that content. The generative model can produce increasingly realistic results as these networks compete and improve.

    Generative AI has applications in various areas, such as art creation, creative text generation, speech synthesis, and so on. It is also used in fields such as image enhancement and machine translation. This approach has advanced significantly in recent years and continues to be an active area of research in artificial intelligence.

    Generative artificial intelligence applied to the legal sector involves using generative models to assist in various tasks and processes related to legal practice.

    Positive aspects of generative AI applied to the legal sector

    The integration of generative artificial intelligence in the legal field has emerged as a transformative catalyst, providing a number of significant benefits that positively impact the efficiency, accuracy, and accessibility of legal services. Throughout this evolution, several aspects highlight the substantial contribution of artificial intelligence to legal practice.

    Some of these benefits are highlighted below:

    Legal Document Drafting

    Generative AI can be used to draft legal documents, contracts and other legal texts. It can generate content based on patterns learned from large sets of legal data, facilitating the creation of standard documents and reducing the workload for legal professionals, also ensuring consistency and accuracy in legal drafting, reducing risks associated with possible human errors.

    Analysis of large volumes of data

    The ability to process information at a speed and scale that surpasses human abilities enables the identification of patterns, trends and precedents with greater speed and accuracy. This advanced analysis helps strengthen legal arguments, improve strategic decision-making and provide clients with stronger legal representation.

    Improved legal research

    Generative artificial intelligence systems can perform faster and more accurate searches of legal databases, law libraries and case law. This streamlines the legal research process, providing professionals with access to relevant information more efficiently.

    Legal Argument Generation

    Generative IA can help generate sound legal arguments. By understanding case law and legal principles, it can help lawyers build better arguments and develop strategies for specific cases.

    Automated Legal Advice

    Automated legal advice systems can be developed that use generative AI to answer common legal questions and provide basic guidance. This could be useful for simpler legal queries and to improve access to legal information.

    Personalized legal advice

    Artificial intelligence can analyze case-specific data and provide personalized legal advice. This helps legal professionals make more informed and strategic decisions by considering situation-specific factors.

    Legal Scenario Simulation

    Generative AI can simulate legal scenarios to help lawyers evaluate possible outcomes and risks in particular cases. This could be useful in strategic decision-making and legal planning.

    Automation of repetitive tasks

    The ability of artificial intelligence systems to take on the workload related to standard document review and basic information management allows legal professionals to focus on more complex and strategic issues. This automation not only saves time but also decreases the likelihood of human error, thus strengthening the overall quality of legal work.

    Optimization of internal processes

    Artificial intelligence can significantly improve efficiency in case management, meeting scheduling, and other day-to-day operations in law firms. This optimization not only streamlines internal practices but also enables more efficient resource allocation and more effective workload management.

    In short, the application of generative artificial intelligence in the legal sector transcends the mere automation of tasks, encompassing fundamental aspects that improve the quality and efficiency of legal services. From the automation of routine tasks to advanced data analysis and document generation, artificial intelligence is a powerful ally that drives positive developments in legal practice. This advancement not only improves the internal efficiency of law firms, but also strengthens the ability of legal professionals to provide accurate and strategic advice in an ever-changing legal environment.

    While generative AI offers many possibilities, its implementation in the legal sector must be approached cautiously to ensure accuracy, ethics, and compliance with applicable laws and regulations. Human intervention and legal oversight remain essential to ensure quality and accountability in using these technologies.

    Negative aspects of the application of generative AI to the legal sector

    While promising, the integration of generative artificial intelligence in the legal sector poses a number of challenges and negative aspects that require attention and careful consideration. Despite significant advances in automation and process improvement, addressing the following adverse aspects is crucial to ensure an ethical and effective implementation.

    Lack of human discernment

    Although artificial intelligence systems can analyze data at impressive speed, they lack human understanding and sensitivity. Interpreting legal nuances, understanding emotional contexts, and making decisions based on ethics are skills intrinsic to legal professionals. Over-reliance on technology in interpreting complex situations could result in inadequate or insensitive assessments.

    Risk of algorithmic bias

    Algorithms used in generative artificial intelligence are trained on historical data, and if that data contains cultural, ethnic, or gender biases, the results generated may reflect and perpetuate those biases. This raises ethical and legal concerns, as automated decisions could be inherently discriminatory, affecting fairness and justice in the legal system.

    Data security and privacy

    The implementation of artificial intelligence in the legal field involves handling highly confidential information. Systems’ vulnerability to cyber attacks could expose sensitive data, compromising the confidentiality and integrity of the legal system. Good protection against cyber threats is essential to maintaining confidence in these technologies.

    Job displacement

    As artificial intelligence takes over routine and repetitive tasks, there is a risk that certain jobs in the legal sector will be affected. This raises questions about role restructuring and the need for legal professionals to acquire new skills to adapt to a changing work environment. The ethics of this displacement and measures to mitigate its impacts must be carefully addressed.

    Ethical complexity in decision making

    Generative artificial intelligence algorithms often operate opaquely, meaning that the logic behind their decisions can be difficult to understand or explain. This raises ethical questions about accountability and transparency in legal decision-making, especially in critical cases where a clear explanation of decisions is critical.

    Costs associated with implementation

    From initial development to ongoing training and system maintenance, law firms, especially smaller ones, can face significant financial challenges. This raises the issue of equity in access to these technologies and the need to seek solutions that do not perpetuate inequities in the legal system.

    Cultural resistance and adaptation

    Cultural resistance and adaptation are factors that should not be overlooked. The introduction of generative artificial intelligence may encounter resistance among legal professionals who may be reluctant to rely on emerging technologies. Organizational culture and acceptance of these tools may require time and effort for successful implementation. Training and effective communication are essential to overcome these barriers.

    In conclusion, the application of generative artificial intelligence in the legal sector, while offering significant benefits, is not without its challenges. Addressing the lack of human discernment, mitigating the risk of algorithmic bias, ensuring data security and privacy, managing labor displacement, addressing ethical complexity in decision making, and managing associated costs are imperative for ethical and effective implementation. Careful thought and appropriate regulation are essential to harness the benefits of artificial intelligence without compromising fundamental principles of fairness and justice in the legal system.

    The Commercial Court No. 17 of Madrid has ruled in the SuperLiga case following the guidelines set by the CJEU in its decision of December 21 last year.

    The lawsuit was filed by ESCL, an entity formed by Real Madrid and other soccer clubs to promote the SuperLiga, most of which abandoned the project due to pressure from fans and their governments against FIFA and UEFA, with RFEF and La Liga voluntarily joining the defendants.

    As usually happens with elections, but not with sentences, everyone, plaintiffs and defendants, has shown their satisfaction with this ruling, which is not yet final, as it can be appealed before the Provincial Court of Madrid.

    In brief, the proceedings involved whether the FIFA/UEFA regulations on the organization and authorization of soccer competitions and the management of the rights deriving from such competitions were in accordance with Community competition law, articles 101 and 102 of the TFEU.

    The CJEU judgment of last December had already ruled that the regulatory rules of FIFA and UEFA relating to prior authorization and participation, which give these entities the power to prevent any competing company from accessing the market, constitute an abuse of a dominant position and infringe the provisions of Articles 101 and 102 TFEU, mainly because they are not accompanied by certain limits and controls guaranteeing transparency and objectivity in the decision not to authorize such international competitions, which allow the risk of abuse of a dominant position to be excluded.

    Likewise, the Court of Justice, using the same arguments and about the exploitation rights deriving from sporting competitions, states that the FIFA and UEFA rules are contrary to the provisions of Articles 101 and 102 TFEU, since they attribute to themselves exclusive responsibility for the marketing of the rights in question.

    Following the guidelines set by the CJEU judgment, the judgment of Madrid Commercial Court No. 17 partially upheld the lawsuit filed by ESLC against UEFA and FIFA. It declared that both organizations have abused their dominant position and are preventing free competition in the market by granting themselves the discretionary power to prohibit participation in alternative competitions and impose unjustified and disproportionate restrictions, conduct that infringes Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

    The ruling condemns FIFA and UEFA to cease the anticompetitive conduct sanctioned and prohibits them from repeating them in the future. It also condemns them to immediately remove all the effects of the anticompetitive actions that occurred before or during the duration of the lawsuit, which began on April 18, 2021, when ESLC announced the launch of the SupeLiga.

    Finally, the judgment states that the content of the declarations issued by FIFA, UEFA and other entities (including the federations and leagues of England, Italy and Spain, some of whose clubs were part of the project) on April 18, 2021 (referred to in the lawsuit as the ‘Declaration’) in relation to the pan-European international competition project, also infringes Articles 101 and 102 TFEU.

    It should be noted that the judgment expressly states that “inasmuch as the SuperLiga in the terms initially set forth in the lawsuit, i.e. in accordance with the initial project has been abandoned and discarded by the promoters themselves, the motions in relation thereto must likewise lapse; it is not possible to impose a prohibition or restriction in the abstract, i.e. to impose a prohibition in the future of any other project or modification of the one already presented”.

    Based on this argument, the Judgment rejects the requests included in section f) of the lawsuit which, in summary, requested that FIFA and UEFA be ordered to refrain from any conduct, measure, or action or issue any statement that prevents or hinders in any way the preparation of the SuperLiga; and the commercial judge concludes by stating in this regard that the purpose of these proceedings is not “the authorization of any competition, but to lay the foundations to channel a system of free competition for the organization of soccer competitions”.

    Thereafter, everyone is happy with the result; La Liga issued a statement stressing that the ruling does not endorse a project which, moreover, according to the same ruling, has been abandoned by its promoters. UEFA says that it is pleased to note that the judge has given a good and valid system of prior authorization for third-party competitions to be approved in accordance with UEFA’s authorization rules and has recognized the undoubted benefits of these rules for the soccer sporting system, concluding that “the judgment does not give third parties the right to develop competitions without authorization and does not refer to any future project or to any modified version of an existing project”.

    The plaintiffs, too, are happy and content to proclaim that UEFA’s statutes and the aggressive measures taken to protect its monopoly have stifled innovation for decades. Clubs should not have to fear threats of sanctions simply for having ideas and having conversations. The era of monopoly is definitely over.

    Rarely does one find that a judgment leaves all the litigants so happy and content, but that seems to be the case here. Or at least that is what all of them have been interested in communicating, when the harsh reality is, on the one hand, that the SuperLiga project as it was structured when the lawsuit started and FIFA/UEFA reacted furiously, is dead and buried, and on the other hand, that the happy world in which FIFA and UEFA regulated soccer and competitions as a private preserve, considered themselves immune and alien to ordinary justice and shared the money generated without being accountable to the Courts of Justice and threatened to expel or expel the rebellious spirits, has come to an end.

    Commercial agents have specific regulations with rights and obligations that are “mandatory”: those who sign an agency contract cannot derogate from them. Answering whether an influencer can be an agent is essential because, if he or she is an agent, the agent regulations will apply to him or her.

    Let’s take it one step at a time. The influencer we will talk about is the person who, with their actions and comments (blogs, social media accounts, videos, events, or a bit of everything), talks to their followers about the advantages of certain products or services identified with a certain third-party brand. In exchange for this, the influencer is paid.[1]

    A commercial agent is someone who promotes the contracting of others’ products or services, does so in a stable way, and gets paid in return. He or she can also conclude the contract, but this is not essential.

    The law imposes certain obligations and guarantees rights to those signing an agency contract. If the influencer is considered an “agent”, he or she should also have them. And there are several of them: for example, the duration, the notice to be given to terminate the contract, the obligations of the parties… And the most relevant, the right of the agent to receive compensation at the end of the relationship for the clientele that has been generated. If an influencer is an agent, he would also have this right.

    How can an influencer be assessed as an agent? For that we must analyse two things: (a) the contract (and be careful because there is a contract, even if it is not written) and (b) how the parties have behaved.

    The elements that, in my opinion, are most relevant to conclude that an influencer is an agent would be the following:

     

    a) the influencer promotes the contracting of services or the purchase of products and does so independently.

    The contract will indicate what the influencer must do. It will be clearer to consider him as an agent if his comments encourage contracting: for example, if they include a link to the manufacturer’s website, if he offers a discount code, if he allows orders to be placed with him. And if he does so as an independent “professional”, and not as an employee (with a timetable, means, instructions).

    It may be more difficult to consider him as an agent if he limits himself to talking about the benefits of the product or service, appearing in advertising as a brand image, and using a certain product, and speaking well of it. The important thing, in my opinion, is to examine whether the influencer’s activity is aimed at getting people to buy the product he or she is talking about, or whether what he or she is doing is more generic persuasion (appearing in advertising, lending his or her image to a product, carrying out demonstrations of its use), or even whether he or she is only seeking to promote himself or herself as a vehicle for general information (for example, influencers who make comparisons of products without trying to get people to buy one or the other). In the first case (trying to get people to buy the product) it would be easier to consider it as an “agent”, and less so in the other examples.

     

    b) this “promotion” is done in a continuous or stable manner.

    Be careful because this continuity or stability does not mean that the contract has to be of indefinite duration. Rather, it is the opposite of a sporadic relationship. A one-year contract may be sufficient, while several unconnected interventions, even if they last longer, may not be sufficient.

    In this case, influencers who make occasional comments, who intervene with isolated actions, who limit themselves to making comparisons without promoting the purchase of one or the other, and even if all this leads to sales, even if their comments are frequent and even if they can have a great influence on the behavior of their followers, would be excluded as agents.

     

    c) they receive remuneration for their activity.

    An influencer who is remunerated based on sales (e.g., by promoting a discount code, a specific link, or referring to your website for orders) can more easily be considered as an agent. But also, if he or she only receives a fixed amount for their promotion. On the other hand, influencers who do not receive any remuneration from the brand (e.g. someone who talks about the benefits of a product in comparison with others, but without linking it to its promotion) would be excluded.

     

    Conclusion

    The borderline between what qualifies an influencer as an agent and what does not can be very thin, especially because contracts are often not unambiguous and sometimes their services are multiple. The most important thing is to carefully analyse the contract and the parties’ behaviour.

    An influencer could be considered a commercial agent to the extent that his or her activity promotes the contracting of the product (not simply if he or she carries out informative or image work), that it is done on a stable basis (and not merely anecdotal or sporadic) and in exchange for remuneration.

    To assess the specific situation, it is essential to analyse the contract (if it is written, this is easier) and the parties’ behaviour.

    In short, to draw up a contract with an influencer or, if it has already been signed, but you want to conclude it, you will have to pay attention to these elements. As an influencer you may have a strong interest in being considered an agent at the end of the contract and thus be entitled to compensation, while as employer you will prefer the opposite.

    FINAL NOTE. In Spain and at the date of this comment (9 June 2024) I am not aware of any judgement dealing with this issue. My proposal is based on my experience of more than 30 years advising and litigating on agency contracts. On the other hand, and as far as I know, there is at least one judgment in Rome (Italy) dealing with the matter: Tribunale di Roma; Sezione Lavoro 4º, St. 2615 of 4 March 2024; R. G. n. 38445/2022.

    Javier Gaspar Álvarez-Novoa

    Practice areas

    • Art
    • Contracts
    • Corporate
    • Credit collection
    • Foreign investments
    Contact Javier

    Contact Javier





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      Spain | Appropriate Means of Non-Jurisdictional Dispute Resolution: A New Paradigm in Spanish Justice

      5 June 2025

      • Spain
      • Alternative Dispute Resolution
      • Litigation

      The increase in so-called cybercrime in recent years is so significant that it requires strong legislative and judicial responses. Losses from online fraud in Europe exceed $100 billion, according to Nasdaq Ventures, of which $5 billion correspond to Spain.

      In Spain, 192,375 cases of computer fraud were reported in 2019, but by 2023 this figure had risen to 427,448. According to the latest official data available, computer fraud accounts for 90.4% of all cybercrimes, with growth of 378% between 2016 and 2023.

      There are many different types of computer fraud, and they are named in English (after all, the lingua franca of our time), including, among other ingenious methods used by skilled fraudsters, those with curious and amusing names (except for those who suffer from them) such as phishing, pharming, juice jacking, tabnabbing, bluesnarfing, catfishing, spoofing, vishing, smishing, whaling, carding, and the one we are interested in today, man in the middle (MITM).

      Man in the Middle scam: how it works

      This MITM fraud involves intercepting communications between two devices connected to a network, allowing the attacker to alter and divert messages exchanged between users. The fraudster intercepts a communication in which one user requests a payment from another and then modifies the IBAN of the bank account to which the transfer should be made in order to obtain the money. The process generally unfolds as follows:

      • Without the company noticing, an attacker intercepts and manipulates an email, changing the IBAN number of the account to which the payment should be made.
      • The cybercriminal impersonates the supplier, sending the message from an email address that is almost identical to the original, but with a slight alteration that is almost imperceptible.
      • The receiving company, trusting the authenticity of the message, makes the transfer to the fraudulent account.

       

      This results in a transfer of assets to the detriment of the person ordering the transfer and in favor of the cyber thief, so that when the person ordering the transfer notices the error, their first reaction is to try to contact the receiving bank in the hope that the funds can be blocked in time. However, in most cases, the cybercriminal has been quicker: the money has already been transferred to another account or withdrawn, leaving little room for maneuvering, except for the initiation of legal proceedings, which we will discuss below.

      The immediate question is what responsibility the bank that has received the transfer order from the deceived user and credits the cyber fraudster’s account with the amount in question has in cases where the payer identifies not only the (fraudulent) IBAN but also the name of the beneficiary of the payment order, which obviously does not match the name of the holder of the bank account receiving the funds.

      The common-sense answer would be that the bank receiving the transfer should confirm that the holder of the account to which the funds are credited and the individual or entity identified as the beneficiary in the transfer order match; if this is not the case, it should suspend the payment and request clarification from the payer. However, this is not the case in light of EU legislation and its transposition into Spanish law, as we will see below.

      Until October 9, the European banking system operated under the premise that the validity of a transfer was based exclusively on the correctness of the IBAN. In other words, if the account number was correct, the transaction was considered valid, even if the beneficiary’s name did not match. This practice has led to numerous cases of fraud, unintentional errors, and loss of funds, especially in instant transfers, where speed can compromise security.

      The most reasonable option for the defrauded payer to recover their money is to sue the bank receiving the payment order (with which they have no contractual relationship) for non-contractual liability under Article 1124 of the Civil Code; in fact, criminal proceedings against the account holder, who is usually referred to in slang as a “mule,” do not usually have a satisfactory outcome, both because the bird usually flies away and because of its lack of solvency.

      The case law of the Provincial Courts has been divided between rulings that strictly and faithfully applied Article 59 of Royal Decree-Law 19/2018 of November 23, on payment services and other urgent financial measures, dismissing the claims of those defrauded, and others in which arguments were sought under the premise of lack of diligence to condemn the bank to compensate the payer.

      This has led to the establishment of quasi-objective liability for banks in relation to digital fraud, imposing a higher standard of diligence on them and transferring the risk inherent in online banking to them, except in cases of willful misconduct or gross negligence on the part of the customer. This line of reasoning, which has been developed from lower court rulings (AP Madrid 178/2015; AP Alicante 107/2018; AP Valencia 212/2021) to the Supreme Court itself (STS 571/2025, among others), is in line with the idea that it is up to the bank to prove that its systems were secure, up to date, and sufficient to prevent the crime from being committed.

      In this context, the concept of bonus argentarius takes on renewed relevance. This is a principle that was included in Law 57/68 to protect home buyers in the real estate sector, but the Supreme Court has ruled on several occasions that it can also be applied to other financial investments. This means that, in the event of losses due to negligence on the part of the financial institution, the customer can file a claim under Law 57/68 and hold the institution liable.

      The bonus argentarius is based on the presumption of fault on the part of the financial institution, which means that even if the customer has no concrete evidence of negligence, it is assumed due to the duty of care that the institution must exercise in the management of investments.

      Based on this principle, the diligence required of financial professionals is not that of the average trader or pater familias, but that of a qualified expert who assumes the obligation to protect the funds entrusted to them by implementing “necessary and renewable” security mechanisms. This implies not only maintaining basic technical measures for enhanced authentication, but also proactively adopting internationally recognized anti-fraud solutions, such as name-IBAN verification (Confirmation of Payee or IBAN-Naam Check), which have proven effective in comparable jurisdictions.

      In line with that doctrine and case law, it can be said that the omission of beneficiary verification measures today constitutes a breach of the contractual duty of diligence and good faith (Articles 1104 and 1258 of the Civil Code), giving rise to civil liability for the damage caused, such that MITM fraud cannot be considered a residual risk attributable to the customer, but rather a systemic security failure attributable to the financial institution, as the designer and custodian of the electronic payment channel.

      In this state of affairs, the Supreme Court, in its recent ruling of March 27, 2025, opted for the alternative of strict application of Article 59, arguing that “if the payment service user provides additional information to that required (specification of the information or unique identifier that the payment service user must provide for the correct initiation or execution of a payment order), the payment service provider shall only be liable for the execution of payment transactions in accordance with the unique identifier provided by the payment service user… and that the liability of the payment service provider, both at Community and national level, is such that it fulfills its obligation by executing the payment transaction in accordance with the unique identifier, without the addition of further information implying a higher standard of diligence

      It is true that, in conclusion, the Supreme Court offered a glimmer of hope to defrauded users when it stated that “the interpretation set out above does not exempt the payment service provider from liability when circumstances, unrelated to the provision of additional data, are found to have contributed to the defective execution of the transaction, either because an additional requirement or demand (e.g., the identification of the beneficiary), or because the payment service provider of the payer or the beneficiary had taken advantage of the error for their own benefit, or because, once the existence of the error had been communicated without delay, one or the other had not taken the measures required by the diligence of an expert trader to allow retroaction or, where appropriate, to minimize the damage.”

      Regulation (EU) 2024/886: a paradigm shift

      And in this scenario fraught with doubts, Regulation (EU) 2024/886 bursts onto the scene, representing a 180-degree turn and a paradigm shift: the new European Regulation, approved in April 2024 and coming into force on October 9, 2025, establishes a clear obligation for banks: they must verify that the name of the beneficiary provided by the payer matches the IBAN holder before executing an immediate transfer in euros.

      The new features of this regulation are

      • mandatory application to all instant transfers within the SEPA area,
      • the new name matching system: if there is a discrepancy between the name and the IBAN, the bank must alert the customer before executing the transaction, and
      • increased liability for financial institutions in the event of fraud or error due to lack of verification.

      In short, the aim is to reduce the risk of fraud, protect consumers, and increase confidence in digital payments.

      This means that Law 19/2018, which regulates payment services in Spain and does not require verification of the beneficiary’s identity, is now outdated, underscoring the need for a national legislative review to harmonize the legal framework with European requirements.

      In conclusion, the obligation to verify the beneficiary of transfers represents a significant step forward in consumer protection and the fight against financial fraud. Regulation (EU) 2024/886 marks a turning point in banking operations, imposing an active responsibility on institutions to ensure the authenticity of transfers.

      In any case, the question remains open regarding the solution to MITM frauds executed before October 9, 2025, and the responsibility of the banking institution. For the time being, the aforementioned Supreme Court ruling of March 27 closes the door to claims against banks, but it cannot be ruled out that the entry into force of Regulation 2024/886 and the paradigm shift will lead to a rethinking of the Supreme Court’s position in line with the quasi-objective liability that lower courts have been maintaining. We will have to wait and see, but such a change would be a great success for bank users who have suffered from this MITM fraud and all other types of cyber fraud.

      It is quite common for business relationships with agents or distributors to last for years without any signed documents. And be careful, because we know that a contract can exist even verbally.

      The absence of a written contract will add difficulties in the event of a possible claim, so what you do between the decision to terminate, and the moment of the claim is very important. Remember: ‘anything you write will be used against you’.

      The decision to terminate a business relationship is a very delicate moment to which, for some reason, solicitors are not invited. Here are some examples (all real) in which companies or employees with the best of intentions wrote to the agent/distributor. All of them were subsequently very damaging to the company:

      Saying ‘We are terminating our business relationship’ when the strategy will be to argue that no such business relationship exists, but rather that there are separate and linked contracts (e.g., supply rather than ongoing distribution contract; very significant compensation consequences).

      ‘You no longer represent our company’, which may be evidence that you did so before.

      ‘As of day X, you may no longer act on behalf of our company,’ which would prove that you were previously able to act on its behalf.

      ‘You may not attend the X trade fair on our behalf.’ A way of confirming that the agent/distributor’s responsibilities included participating in trade fairs and probably accrediting the customers obtained.

      ‘The sales you promoted have been significantly reduced in year N.’ When there is no written contract or other form of documentation, imputing a breach of an obligation that is not clear can be counterproductive.

      Saying ‘You are not actively promoting our products’ and then adding: ‘We urge you to stop promoting the sale of our products’.

      ‘You are no longer our exclusive representative’, which proves a type of relationship (representation/agent) and a tacit or express agreement (‘exclusivity’).

      ‘We have appointed another representative in your area’, which shows that the agent/distributor had an assigned area and was “representing”.

      ‘From this moment on, orders will be handled by X’, which also confirms a type of relationship.

       

      In summary: from the moment the company considers terminating a commercial relationship, especially when it is not in writing and before sending any letter, it is advisable to think carefully about the strategy in case of a possible claim. This is the best time to seek advice and avoid surprises. Any communication that is not in line with this strategy designed from the outset can only lead to confusion and problems.

      In Spain, companies can be incorporated by legal entities or persons of any nationality, residing in Spain or abroad.

      Incorporation by a natural person

      The foreign citizen who intends to incorporate a Spanish company, and is not a resident in Spain, must obtain a Foreigner Identification Number/ Tax Identification Number (NIE/NIF) prior to the incorporation of the company before a Notary Public.

      To obtain a NIE/NIF, he/she must, alternatively: (i) appear before the Spanish Consulate in his/her country of residence, or (ii) apply for it before the Immigration Office/Police Station in Spain; in both cases personally or through a representative. The representation will be accredited with sufficient power of attorney, in which it is expressly stated that the representative is authorised to present the application to obtain the NIE.

      Once the NIE has been obtained, it must be communicated to the Tax Agency by presenting a Form 030, a photocopy of the passport and a photocopy of the NIE. Once the NIE has been communicated to the Tax Agency, the foreign citizen can now appear before a Notary Public to notarise the Deed of Incorporation of the company, presenting the following documents:

      • The bylaws, with the minimum content required by Spanish law (Model Bylaws of a Public Limited Company, Model Bylaws of a Private Limited Company);
      • The negative certificate of denomination issued by the Central Mercantile Registry (reservation of name for the company);
      • In the case of monetary contributions, the deposit slip issued by the bank accrediting the disbursement of the initial contributions (or, if applicable, the corresponding amount in cash) is required. In the case of Limited Companies, the notary must provide bank proof of payment of a minimum of 3,000 euros, payment to be made directly by the individual who will be the owner of the company’s shares.
      • If the foreign citizen planning to incorporate the company does not appear personally before the Notary, they may do so through a representative. The original power of attorney granted to the representative, duly legalized (by apostille or document legalization) and accompanied by sworn translation, must be provided.
      • The original identification documents (national identity card or passport and NIE/TIE) of the persons who constitute the new company;
      • The foreign investment declaration duly completed. Although merely informative, this mandatory document must be filed with the Foreign Investment Registry of the Ministry of Economy and Competitiveness within one month of the New Company’s incorporation. The notary can take care of it if requested (Form D-1A).

      Incorporation by a legal entity

      The foreign company that plans to incorporate a Spanish company must obtain a Tax Identification Number before the incorporation, in front of a Notary Public, by submitting an application form (EX15).

      This application for a NIF must be signed by a legal representative of the company who, in the event of not being a legal resident in Spain (Spanish or foreigner with a residence permit), must obtain a NIE as a non-resident beforehand.

      If a foreign company grants power of attorney to a legal resident in Spain to obtain the company’s NIF, the Tax Agency requires that the grantor of the power of attorney also have an NIE as a non-resident. If he does not have a NIE, the Tax Administration can grant him a provisional NIE by means of form 030, together with a photocopy of his passport.

      Once empowered, this legal representative of the foreign company must sign the application for the census form (form 036) and this application must be presented, in person, at the Tax Agency office, enclosing:

      • Census declaration (Form 036) signed by the person empowered by the foreign company requesting the NIF, and
      • Power of attorney granted by the authorized representative of the non-resident entity, duly notarized and legalized (see “Legalization and translation of documents”), in which a legal resident person is appointed as representative of the non-resident entity for the purpose of obtaining the NIF.

      Once the foreign company is registered with the Tax Agency, it can proceed with the incorporation.

      Introduction: A Paradigm Shift in Conflict Resolution

      The approval of Organic Law 1/2025, of January 2, on measures for the efficiency of the Public Justice Service, marks a turning point in the Spanish judicial system. This legislation is not limited to introducing procedural changes, but reflects a profound transformation in the very concept of justice. The legislator has made a firm commitment to promoting alternatives to the judicial resolution of disputes, making prior negotiation a central element of the system.

      The saturation of the courts, the costs associated with judicial proceedings, and the search for more satisfactory solutions for the parties have prompted this reform, which places the so-called “appropriate means of non-jurisdictional dispute resolution” as the cornerstone of a new justice model oriented towards dialogue and agreement.

      The philosophy behind alternative means of dispute resolution

      Beyond the decongestion of the courts, this reform responds to a philosophy that understands that not all conflicts necessarily require a judicial response. Alternative means of dispute resolution are based on the premise that many conflicts can find more satisfactory and lasting solutions, adapted to the needs and interests of the parties, when they actively participate in their construction.

      Organic Law 1/2025 defines these means as “any type of negotiating activity, recognized in this or other laws, state or autonomous, to which the parties to a conflict resort in good faith with the aim of finding an extrajudicial solution to it, either by themselves or with the intervention of a neutral third party”. This broad and flexible definition is intended to cover various forms of negotiation whose common denominator is the protagonism of the parties in the resolution of their own disputes.

      A range of possibilities: Diversity of mechanisms for diversity of conflicts

      One of the most noteworthy aspects of the new regulation is that it does not rely on a single model of alternative dispute resolution but recognizes the diversity of situations and the need to offer different tools adapted to each particular case.

      Mediation, already consolidated in our legal system through Law 5/2012, maintains its relevance as the preferred method, but other modalities such as conciliation in its various variants (notarial, registry, before a lawyer of the Administration of Justice or judicial), the opinion of independent experts, confidential binding offers, or the novel process of collaborative law are added to it.

      This plurality of mechanisms reflects the complexity of contemporary legal relationships and the need to provide tailored responses to each type of conflict. Resolving a neighborhood dispute is not the same as resolving a complex business dispute, and the legislator has been aware that “one size fits all” would not be effective for the diversity of situations that may arise.

      The controversial commitment to enforceability: The requirement of procedural validity

      Undoubtedly, the most innovative -and probably the most controversial- aspect of the new regulation is the configuration of these means as a mandatory prerequisite for resorting to judicial proceedings in certain areas. This decision represents a qualitative leap with respect to the previous regulation, which mainly favored the voluntary nature of these mechanisms.

      From the entry into force of Organic Law 1/2025, April 3, 2025, the claim in the civil jurisdictional order will not be admitted if it is not justified that the resolution of the conflict has been previously attempted by any of the recognized alternative ways. Not only that, but also the identity between the object of the previous negotiation and the object of the litigation to be initiated must be established.

      This mandatory nature has been the subject of intense debate. Its advocates argue that it is necessary to promote cultural change in a traditionally litigious society, while its detractors warn of the risk of turning these mechanisms into mere formalities that distort their true purpose.

      The truth is that the legislator has tried to find a balance, excluding from this obligation certain particularly sensitive matters or those which, by their nature, require an immediate judicial response. Thus, issues such as the judicial protection of fundamental rights, measures for the protection of minors, or the request for precautionary measures, among others, are exempted from the requirement of prior negotiation.

      The guiding principles: Autonomy and confidentiality as pillars of the system

      The effectiveness of alternative dispute resolution rests mainly on two fundamental principles: the autonomy of the parties and the confidentiality of the process.

      The principle of private autonomy recognizes that the parties themselves best know their interests and needs and are, therefore, in the best position to find solutions adapted to their situation. The law establishes that the parties are free to settle, if they respect the law, good faith, and public policy. This freedom is essential for the solutions reached to be truly satisfactory and lasting.

      The principle of confidentiality is crucial to creating a climate of trust that allows the parties to express themselves freely during the negotiation process. The law establishes that the information and documentation disclosed during the negotiation must be kept confidential, with very specific exceptions, such as express waivers by the parties, court orders in criminal matters, or reasons of public order.

      This duty of confidentiality extends to all participants in the process: the parties, their lawyers, and, where appropriate, the neutral third party involved. The aim is to ensure that what is said or proposed during the negotiation cannot be used later in a possible judicial process, thus promoting a sincere and constructive dialogue.

      The Negotiation Process: Relevant Procedural Aspects

      The regulation of the procedural aspects of the different means of dispute resolution also reflects the legislator’s desire to combine the necessary flexibility with the minimum guarantees required.

      As regards standing, the initiative to resort to these mechanisms may come from either party, from both by mutual agreement, or even from a judicial referral. This recognizes both the parties’ autonomy and the possibility that the judicial system itself may encourage the use of these alternative channels.

      Regarding the involvement of professionals, the law generally prefers a non-mandatory approach to legal assistance, except in specific situations like the preparation of binding offers (with exceptions for smaller amounts). This flexibility aims to enhance access to these mechanisms; however, the complexity of many legal disputes often makes it wise to seek professional guidance.

      A particularly relevant aspect is the effect that the request for these mechanisms has on the statute of limitations and expiration periods. The law establishes that such a request interrupts the statute of limitations or suspends the expiration of actions from the date of communication to the other party, thus avoiding the attempt of an amicable solution that may prejudice the rights of the party that promotes it.

      In terms of form, the preferred method is face-to-face, although the use of telematic means is permitted by agreement of the parties or in the case of claims for amounts of less than 600 euros. This flexibility is particularly appropriate in a context of increasing digitalization of legal relations.

      Specific Modalities: Diversity of mechanisms for diversity of conflicts

      Among the different modalities recognized by the law, it is worthwhile to focus on some that present particularly novel or relevant characteristics.

      Private conciliation involves the intervention of a person with technical or legal expertise related to the dispute’s subject matter. The law requires this person to be registered in a recognized professional association or in a register of mediators and to act impartially and confidentially. This mechanism takes advantage of the specialized knowledge of certain professionals to facilitate agreement in technically complex matters.

      The confidential binding offer is a particularly interesting mechanism for certain types of disputes. One of the parties makes an offer that is binding on it in the event of acceptance by the other party. The law requires that the identity of the offeror, the actual receipt by the other party, and the detailed content of the offer be recorded. This instrument can be particularly useful in financial claims, where the main obstacle to settlement is often the amount.

      The independent expert opinion consists of commissioning an opinion from an expert in the subject matter of the dispute. Unlike other mechanisms, this opinion is not binding, but may serve as a basis for agreement if the parties accept it, or at least to clarify the technical aspects of the dispute. Following the issuance of the opinion, the parties may accept it as an agreement, propose improvements or reject it, in which case the procedural requirement is deemed to be fulfilled.

      Finally, the collaborative law process represents perhaps the most innovative aspect of the new regulation. It is a structured negotiation in which the parties, assisted by their respective lawyers, work together to reach a satisfactory solution, being able to integrate other professionals (psychologists, economists, etc.) when the complexity of the case requires it. At the end, minutes are drawn up with the participants, the sessions held and the agreements reached.

      The challenge of implementation: From theory to practice

      The real effectiveness of this new system will depend largely on how it is implemented in practice. It is not enough to make it compulsory to attempt out-of-court settlement; this attempt must be genuine and not become a mere formality.

      In this regard, the law requires that the negotiation attempt be “real and credible; it cannot be fictitious.” To this end, it establishes documentation requirements that vary depending on whether or not a neutral third party is involved but always include a responsible statement that the parties have intervened in good faith in the process.

      Likewise, the law regulates in detail when the negotiation process is understood to be concluded, whether it concludes with or without an agreement. In the event of an agreement, it must be formalized by identifying the parties and, if applicable, their lawyers and the neutral third party, indicating the place and date, as well as the obligations assumed by each party.

      The possibility of converting the agreement into a public deed to convert it into an enforceable title reinforces its value and facilitates its compliance, avoiding the possibility of non-compliance with the agreement, forcing the initiation of a declaratory judicial proceeding.

      A horizon to be explored: Perspectives and challenges

      Organic Law 1/2025 represents a turning point in the conception of justice in Spain, bringing us closer to models already consolidated in other countries with a long tradition in alternative means of conflict resolution. The United States, Canada and the Nordic countries have been using these mechanisms for decades, with generally positive results in terms of user satisfaction and decongestion of the courts.

      However, each legal system has its particularities, and the success of these mechanisms depends not only on their legal regulation but also on cultural, sociological, and organizational factors. Spanish society’s traditional litigiousness, the poor negotiating culture in certain areas, and the lack of specific training of many professionals are challenges that must be faced.

      The commitment to obligatory nature as an initial impulse may be understandable in a context of paradigm change, but the real success of these mechanisms will come from their capacity to generate satisfactory solutions that will progressively make them the preferred option on their own merits, beyond their obligatory nature.

      Conclusion: Between Hope and Caution

      The new regulation of the appropriate means of non-jurisdictional dispute resolution is in line with a clear international trend towards the promotion of alternatives to judicial dispute resolution. This trend responds both to practical needs – decongesting the courts, reducing costs – and to a philosophy that values the protagonism of the parties in the management of their own conflicts.

      In this sense, Spanish legislation joins a global movement that has shown positive results in many jurisdictions. However, only time will tell whether the legislative technique used, especially the commitment to mandatory nature as a procedural requirement, is the most appropriate to achieve the true purpose of encouraging agreement in order to avoid litigation.

      The success of this reform will depend not only on its regulatory design, but also on factors such as adequate training of the professionals involved, public awareness of the advantages of these alternative routes, and the system’s capacity to evaluate and adapt according to the results obtained.

      In short, we are facing an ambitious and necessary reform, which opens up a hopeful horizon but which will have to overcome important challenges in order to consolidate itself as a true paradigm shift in the administration of justice in Spain. The true criterion of success will not be the number of negotiation attempts made, but the quality of the agreements reached and the satisfaction of citizens with a more participatory, efficient justice system adapted to their real needs.

      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.

      Generative artificial intelligence (generative AI) is a variant of artificial intelligence aimed at creating models capable of generating new and original content. These models are trained to learn patterns and features from data sets, and can then generate similar or even completely new content based on those learned patterns.

      A specific type of generative model is the generative neural network (GAN). GANs consist of two neural networks, one generative and one discriminative, working together. The generative network creates new content, while the discriminative network evaluates the authenticity of that content. The generative model can produce increasingly realistic results as these networks compete and improve.

      Generative AI has applications in various areas, such as art creation, creative text generation, speech synthesis, and so on. It is also used in fields such as image enhancement and machine translation. This approach has advanced significantly in recent years and continues to be an active area of research in artificial intelligence.

      Generative artificial intelligence applied to the legal sector involves using generative models to assist in various tasks and processes related to legal practice.

      Positive aspects of generative AI applied to the legal sector

      The integration of generative artificial intelligence in the legal field has emerged as a transformative catalyst, providing a number of significant benefits that positively impact the efficiency, accuracy, and accessibility of legal services. Throughout this evolution, several aspects highlight the substantial contribution of artificial intelligence to legal practice.

      Some of these benefits are highlighted below:

      Legal Document Drafting

      Generative AI can be used to draft legal documents, contracts and other legal texts. It can generate content based on patterns learned from large sets of legal data, facilitating the creation of standard documents and reducing the workload for legal professionals, also ensuring consistency and accuracy in legal drafting, reducing risks associated with possible human errors.

      Analysis of large volumes of data

      The ability to process information at a speed and scale that surpasses human abilities enables the identification of patterns, trends and precedents with greater speed and accuracy. This advanced analysis helps strengthen legal arguments, improve strategic decision-making and provide clients with stronger legal representation.

      Improved legal research

      Generative artificial intelligence systems can perform faster and more accurate searches of legal databases, law libraries and case law. This streamlines the legal research process, providing professionals with access to relevant information more efficiently.

      Legal Argument Generation

      Generative IA can help generate sound legal arguments. By understanding case law and legal principles, it can help lawyers build better arguments and develop strategies for specific cases.

      Automated Legal Advice

      Automated legal advice systems can be developed that use generative AI to answer common legal questions and provide basic guidance. This could be useful for simpler legal queries and to improve access to legal information.

      Personalized legal advice

      Artificial intelligence can analyze case-specific data and provide personalized legal advice. This helps legal professionals make more informed and strategic decisions by considering situation-specific factors.

      Legal Scenario Simulation

      Generative AI can simulate legal scenarios to help lawyers evaluate possible outcomes and risks in particular cases. This could be useful in strategic decision-making and legal planning.

      Automation of repetitive tasks

      The ability of artificial intelligence systems to take on the workload related to standard document review and basic information management allows legal professionals to focus on more complex and strategic issues. This automation not only saves time but also decreases the likelihood of human error, thus strengthening the overall quality of legal work.

      Optimization of internal processes

      Artificial intelligence can significantly improve efficiency in case management, meeting scheduling, and other day-to-day operations in law firms. This optimization not only streamlines internal practices but also enables more efficient resource allocation and more effective workload management.

      In short, the application of generative artificial intelligence in the legal sector transcends the mere automation of tasks, encompassing fundamental aspects that improve the quality and efficiency of legal services. From the automation of routine tasks to advanced data analysis and document generation, artificial intelligence is a powerful ally that drives positive developments in legal practice. This advancement not only improves the internal efficiency of law firms, but also strengthens the ability of legal professionals to provide accurate and strategic advice in an ever-changing legal environment.

      While generative AI offers many possibilities, its implementation in the legal sector must be approached cautiously to ensure accuracy, ethics, and compliance with applicable laws and regulations. Human intervention and legal oversight remain essential to ensure quality and accountability in using these technologies.

      Negative aspects of the application of generative AI to the legal sector

      While promising, the integration of generative artificial intelligence in the legal sector poses a number of challenges and negative aspects that require attention and careful consideration. Despite significant advances in automation and process improvement, addressing the following adverse aspects is crucial to ensure an ethical and effective implementation.

      Lack of human discernment

      Although artificial intelligence systems can analyze data at impressive speed, they lack human understanding and sensitivity. Interpreting legal nuances, understanding emotional contexts, and making decisions based on ethics are skills intrinsic to legal professionals. Over-reliance on technology in interpreting complex situations could result in inadequate or insensitive assessments.

      Risk of algorithmic bias

      Algorithms used in generative artificial intelligence are trained on historical data, and if that data contains cultural, ethnic, or gender biases, the results generated may reflect and perpetuate those biases. This raises ethical and legal concerns, as automated decisions could be inherently discriminatory, affecting fairness and justice in the legal system.

      Data security and privacy

      The implementation of artificial intelligence in the legal field involves handling highly confidential information. Systems’ vulnerability to cyber attacks could expose sensitive data, compromising the confidentiality and integrity of the legal system. Good protection against cyber threats is essential to maintaining confidence in these technologies.

      Job displacement

      As artificial intelligence takes over routine and repetitive tasks, there is a risk that certain jobs in the legal sector will be affected. This raises questions about role restructuring and the need for legal professionals to acquire new skills to adapt to a changing work environment. The ethics of this displacement and measures to mitigate its impacts must be carefully addressed.

      Ethical complexity in decision making

      Generative artificial intelligence algorithms often operate opaquely, meaning that the logic behind their decisions can be difficult to understand or explain. This raises ethical questions about accountability and transparency in legal decision-making, especially in critical cases where a clear explanation of decisions is critical.

      Costs associated with implementation

      From initial development to ongoing training and system maintenance, law firms, especially smaller ones, can face significant financial challenges. This raises the issue of equity in access to these technologies and the need to seek solutions that do not perpetuate inequities in the legal system.

      Cultural resistance and adaptation

      Cultural resistance and adaptation are factors that should not be overlooked. The introduction of generative artificial intelligence may encounter resistance among legal professionals who may be reluctant to rely on emerging technologies. Organizational culture and acceptance of these tools may require time and effort for successful implementation. Training and effective communication are essential to overcome these barriers.

      In conclusion, the application of generative artificial intelligence in the legal sector, while offering significant benefits, is not without its challenges. Addressing the lack of human discernment, mitigating the risk of algorithmic bias, ensuring data security and privacy, managing labor displacement, addressing ethical complexity in decision making, and managing associated costs are imperative for ethical and effective implementation. Careful thought and appropriate regulation are essential to harness the benefits of artificial intelligence without compromising fundamental principles of fairness and justice in the legal system.

      The Commercial Court No. 17 of Madrid has ruled in the SuperLiga case following the guidelines set by the CJEU in its decision of December 21 last year.

      The lawsuit was filed by ESCL, an entity formed by Real Madrid and other soccer clubs to promote the SuperLiga, most of which abandoned the project due to pressure from fans and their governments against FIFA and UEFA, with RFEF and La Liga voluntarily joining the defendants.

      As usually happens with elections, but not with sentences, everyone, plaintiffs and defendants, has shown their satisfaction with this ruling, which is not yet final, as it can be appealed before the Provincial Court of Madrid.

      In brief, the proceedings involved whether the FIFA/UEFA regulations on the organization and authorization of soccer competitions and the management of the rights deriving from such competitions were in accordance with Community competition law, articles 101 and 102 of the TFEU.

      The CJEU judgment of last December had already ruled that the regulatory rules of FIFA and UEFA relating to prior authorization and participation, which give these entities the power to prevent any competing company from accessing the market, constitute an abuse of a dominant position and infringe the provisions of Articles 101 and 102 TFEU, mainly because they are not accompanied by certain limits and controls guaranteeing transparency and objectivity in the decision not to authorize such international competitions, which allow the risk of abuse of a dominant position to be excluded.

      Likewise, the Court of Justice, using the same arguments and about the exploitation rights deriving from sporting competitions, states that the FIFA and UEFA rules are contrary to the provisions of Articles 101 and 102 TFEU, since they attribute to themselves exclusive responsibility for the marketing of the rights in question.

      Following the guidelines set by the CJEU judgment, the judgment of Madrid Commercial Court No. 17 partially upheld the lawsuit filed by ESLC against UEFA and FIFA. It declared that both organizations have abused their dominant position and are preventing free competition in the market by granting themselves the discretionary power to prohibit participation in alternative competitions and impose unjustified and disproportionate restrictions, conduct that infringes Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

      The ruling condemns FIFA and UEFA to cease the anticompetitive conduct sanctioned and prohibits them from repeating them in the future. It also condemns them to immediately remove all the effects of the anticompetitive actions that occurred before or during the duration of the lawsuit, which began on April 18, 2021, when ESLC announced the launch of the SupeLiga.

      Finally, the judgment states that the content of the declarations issued by FIFA, UEFA and other entities (including the federations and leagues of England, Italy and Spain, some of whose clubs were part of the project) on April 18, 2021 (referred to in the lawsuit as the ‘Declaration’) in relation to the pan-European international competition project, also infringes Articles 101 and 102 TFEU.

      It should be noted that the judgment expressly states that “inasmuch as the SuperLiga in the terms initially set forth in the lawsuit, i.e. in accordance with the initial project has been abandoned and discarded by the promoters themselves, the motions in relation thereto must likewise lapse; it is not possible to impose a prohibition or restriction in the abstract, i.e. to impose a prohibition in the future of any other project or modification of the one already presented”.

      Based on this argument, the Judgment rejects the requests included in section f) of the lawsuit which, in summary, requested that FIFA and UEFA be ordered to refrain from any conduct, measure, or action or issue any statement that prevents or hinders in any way the preparation of the SuperLiga; and the commercial judge concludes by stating in this regard that the purpose of these proceedings is not “the authorization of any competition, but to lay the foundations to channel a system of free competition for the organization of soccer competitions”.

      Thereafter, everyone is happy with the result; La Liga issued a statement stressing that the ruling does not endorse a project which, moreover, according to the same ruling, has been abandoned by its promoters. UEFA says that it is pleased to note that the judge has given a good and valid system of prior authorization for third-party competitions to be approved in accordance with UEFA’s authorization rules and has recognized the undoubted benefits of these rules for the soccer sporting system, concluding that “the judgment does not give third parties the right to develop competitions without authorization and does not refer to any future project or to any modified version of an existing project”.

      The plaintiffs, too, are happy and content to proclaim that UEFA’s statutes and the aggressive measures taken to protect its monopoly have stifled innovation for decades. Clubs should not have to fear threats of sanctions simply for having ideas and having conversations. The era of monopoly is definitely over.

      Rarely does one find that a judgment leaves all the litigants so happy and content, but that seems to be the case here. Or at least that is what all of them have been interested in communicating, when the harsh reality is, on the one hand, that the SuperLiga project as it was structured when the lawsuit started and FIFA/UEFA reacted furiously, is dead and buried, and on the other hand, that the happy world in which FIFA and UEFA regulated soccer and competitions as a private preserve, considered themselves immune and alien to ordinary justice and shared the money generated without being accountable to the Courts of Justice and threatened to expel or expel the rebellious spirits, has come to an end.

      Commercial agents have specific regulations with rights and obligations that are “mandatory”: those who sign an agency contract cannot derogate from them. Answering whether an influencer can be an agent is essential because, if he or she is an agent, the agent regulations will apply to him or her.

      Let’s take it one step at a time. The influencer we will talk about is the person who, with their actions and comments (blogs, social media accounts, videos, events, or a bit of everything), talks to their followers about the advantages of certain products or services identified with a certain third-party brand. In exchange for this, the influencer is paid.[1]

      A commercial agent is someone who promotes the contracting of others’ products or services, does so in a stable way, and gets paid in return. He or she can also conclude the contract, but this is not essential.

      The law imposes certain obligations and guarantees rights to those signing an agency contract. If the influencer is considered an “agent”, he or she should also have them. And there are several of them: for example, the duration, the notice to be given to terminate the contract, the obligations of the parties… And the most relevant, the right of the agent to receive compensation at the end of the relationship for the clientele that has been generated. If an influencer is an agent, he would also have this right.

      How can an influencer be assessed as an agent? For that we must analyse two things: (a) the contract (and be careful because there is a contract, even if it is not written) and (b) how the parties have behaved.

      The elements that, in my opinion, are most relevant to conclude that an influencer is an agent would be the following:

       

      a) the influencer promotes the contracting of services or the purchase of products and does so independently.

      The contract will indicate what the influencer must do. It will be clearer to consider him as an agent if his comments encourage contracting: for example, if they include a link to the manufacturer’s website, if he offers a discount code, if he allows orders to be placed with him. And if he does so as an independent “professional”, and not as an employee (with a timetable, means, instructions).

      It may be more difficult to consider him as an agent if he limits himself to talking about the benefits of the product or service, appearing in advertising as a brand image, and using a certain product, and speaking well of it. The important thing, in my opinion, is to examine whether the influencer’s activity is aimed at getting people to buy the product he or she is talking about, or whether what he or she is doing is more generic persuasion (appearing in advertising, lending his or her image to a product, carrying out demonstrations of its use), or even whether he or she is only seeking to promote himself or herself as a vehicle for general information (for example, influencers who make comparisons of products without trying to get people to buy one or the other). In the first case (trying to get people to buy the product) it would be easier to consider it as an “agent”, and less so in the other examples.

       

      b) this “promotion” is done in a continuous or stable manner.

      Be careful because this continuity or stability does not mean that the contract has to be of indefinite duration. Rather, it is the opposite of a sporadic relationship. A one-year contract may be sufficient, while several unconnected interventions, even if they last longer, may not be sufficient.

      In this case, influencers who make occasional comments, who intervene with isolated actions, who limit themselves to making comparisons without promoting the purchase of one or the other, and even if all this leads to sales, even if their comments are frequent and even if they can have a great influence on the behavior of their followers, would be excluded as agents.

       

      c) they receive remuneration for their activity.

      An influencer who is remunerated based on sales (e.g., by promoting a discount code, a specific link, or referring to your website for orders) can more easily be considered as an agent. But also, if he or she only receives a fixed amount for their promotion. On the other hand, influencers who do not receive any remuneration from the brand (e.g. someone who talks about the benefits of a product in comparison with others, but without linking it to its promotion) would be excluded.

       

      Conclusion

      The borderline between what qualifies an influencer as an agent and what does not can be very thin, especially because contracts are often not unambiguous and sometimes their services are multiple. The most important thing is to carefully analyse the contract and the parties’ behaviour.

      An influencer could be considered a commercial agent to the extent that his or her activity promotes the contracting of the product (not simply if he or she carries out informative or image work), that it is done on a stable basis (and not merely anecdotal or sporadic) and in exchange for remuneration.

      To assess the specific situation, it is essential to analyse the contract (if it is written, this is easier) and the parties’ behaviour.

      In short, to draw up a contract with an influencer or, if it has already been signed, but you want to conclude it, you will have to pay attention to these elements. As an influencer you may have a strong interest in being considered an agent at the end of the contract and thus be entitled to compensation, while as employer you will prefer the opposite.

      FINAL NOTE. In Spain and at the date of this comment (9 June 2024) I am not aware of any judgement dealing with this issue. My proposal is based on my experience of more than 30 years advising and litigating on agency contracts. On the other hand, and as far as I know, there is at least one judgment in Rome (Italy) dealing with the matter: Tribunale di Roma; Sezione Lavoro 4º, St. 2615 of 4 March 2024; R. G. n. 38445/2022.

      Angel Iglesias Molero

      Practice areas

      • Corporate
      • Artificial intelligence
      • Contracts
      • Investments
      • Start-up
      Contact Angel

      Contact Angel





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        Spain | Appropriate Means of Dispute Resolution (ADR) as a prerequisite for litigation

        6 January 2025

        • Spain
        • Alternative Dispute Resolution
        • Litigation

        The increase in so-called cybercrime in recent years is so significant that it requires strong legislative and judicial responses. Losses from online fraud in Europe exceed $100 billion, according to Nasdaq Ventures, of which $5 billion correspond to Spain.

        In Spain, 192,375 cases of computer fraud were reported in 2019, but by 2023 this figure had risen to 427,448. According to the latest official data available, computer fraud accounts for 90.4% of all cybercrimes, with growth of 378% between 2016 and 2023.

        There are many different types of computer fraud, and they are named in English (after all, the lingua franca of our time), including, among other ingenious methods used by skilled fraudsters, those with curious and amusing names (except for those who suffer from them) such as phishing, pharming, juice jacking, tabnabbing, bluesnarfing, catfishing, spoofing, vishing, smishing, whaling, carding, and the one we are interested in today, man in the middle (MITM).

        Man in the Middle scam: how it works

        This MITM fraud involves intercepting communications between two devices connected to a network, allowing the attacker to alter and divert messages exchanged between users. The fraudster intercepts a communication in which one user requests a payment from another and then modifies the IBAN of the bank account to which the transfer should be made in order to obtain the money. The process generally unfolds as follows:

        • Without the company noticing, an attacker intercepts and manipulates an email, changing the IBAN number of the account to which the payment should be made.
        • The cybercriminal impersonates the supplier, sending the message from an email address that is almost identical to the original, but with a slight alteration that is almost imperceptible.
        • The receiving company, trusting the authenticity of the message, makes the transfer to the fraudulent account.

         

        This results in a transfer of assets to the detriment of the person ordering the transfer and in favor of the cyber thief, so that when the person ordering the transfer notices the error, their first reaction is to try to contact the receiving bank in the hope that the funds can be blocked in time. However, in most cases, the cybercriminal has been quicker: the money has already been transferred to another account or withdrawn, leaving little room for maneuvering, except for the initiation of legal proceedings, which we will discuss below.

        The immediate question is what responsibility the bank that has received the transfer order from the deceived user and credits the cyber fraudster’s account with the amount in question has in cases where the payer identifies not only the (fraudulent) IBAN but also the name of the beneficiary of the payment order, which obviously does not match the name of the holder of the bank account receiving the funds.

        The common-sense answer would be that the bank receiving the transfer should confirm that the holder of the account to which the funds are credited and the individual or entity identified as the beneficiary in the transfer order match; if this is not the case, it should suspend the payment and request clarification from the payer. However, this is not the case in light of EU legislation and its transposition into Spanish law, as we will see below.

        Until October 9, the European banking system operated under the premise that the validity of a transfer was based exclusively on the correctness of the IBAN. In other words, if the account number was correct, the transaction was considered valid, even if the beneficiary’s name did not match. This practice has led to numerous cases of fraud, unintentional errors, and loss of funds, especially in instant transfers, where speed can compromise security.

        The most reasonable option for the defrauded payer to recover their money is to sue the bank receiving the payment order (with which they have no contractual relationship) for non-contractual liability under Article 1124 of the Civil Code; in fact, criminal proceedings against the account holder, who is usually referred to in slang as a “mule,” do not usually have a satisfactory outcome, both because the bird usually flies away and because of its lack of solvency.

        The case law of the Provincial Courts has been divided between rulings that strictly and faithfully applied Article 59 of Royal Decree-Law 19/2018 of November 23, on payment services and other urgent financial measures, dismissing the claims of those defrauded, and others in which arguments were sought under the premise of lack of diligence to condemn the bank to compensate the payer.

        This has led to the establishment of quasi-objective liability for banks in relation to digital fraud, imposing a higher standard of diligence on them and transferring the risk inherent in online banking to them, except in cases of willful misconduct or gross negligence on the part of the customer. This line of reasoning, which has been developed from lower court rulings (AP Madrid 178/2015; AP Alicante 107/2018; AP Valencia 212/2021) to the Supreme Court itself (STS 571/2025, among others), is in line with the idea that it is up to the bank to prove that its systems were secure, up to date, and sufficient to prevent the crime from being committed.

        In this context, the concept of bonus argentarius takes on renewed relevance. This is a principle that was included in Law 57/68 to protect home buyers in the real estate sector, but the Supreme Court has ruled on several occasions that it can also be applied to other financial investments. This means that, in the event of losses due to negligence on the part of the financial institution, the customer can file a claim under Law 57/68 and hold the institution liable.

        The bonus argentarius is based on the presumption of fault on the part of the financial institution, which means that even if the customer has no concrete evidence of negligence, it is assumed due to the duty of care that the institution must exercise in the management of investments.

        Based on this principle, the diligence required of financial professionals is not that of the average trader or pater familias, but that of a qualified expert who assumes the obligation to protect the funds entrusted to them by implementing “necessary and renewable” security mechanisms. This implies not only maintaining basic technical measures for enhanced authentication, but also proactively adopting internationally recognized anti-fraud solutions, such as name-IBAN verification (Confirmation of Payee or IBAN-Naam Check), which have proven effective in comparable jurisdictions.

        In line with that doctrine and case law, it can be said that the omission of beneficiary verification measures today constitutes a breach of the contractual duty of diligence and good faith (Articles 1104 and 1258 of the Civil Code), giving rise to civil liability for the damage caused, such that MITM fraud cannot be considered a residual risk attributable to the customer, but rather a systemic security failure attributable to the financial institution, as the designer and custodian of the electronic payment channel.

        In this state of affairs, the Supreme Court, in its recent ruling of March 27, 2025, opted for the alternative of strict application of Article 59, arguing that “if the payment service user provides additional information to that required (specification of the information or unique identifier that the payment service user must provide for the correct initiation or execution of a payment order), the payment service provider shall only be liable for the execution of payment transactions in accordance with the unique identifier provided by the payment service user… and that the liability of the payment service provider, both at Community and national level, is such that it fulfills its obligation by executing the payment transaction in accordance with the unique identifier, without the addition of further information implying a higher standard of diligence

        It is true that, in conclusion, the Supreme Court offered a glimmer of hope to defrauded users when it stated that “the interpretation set out above does not exempt the payment service provider from liability when circumstances, unrelated to the provision of additional data, are found to have contributed to the defective execution of the transaction, either because an additional requirement or demand (e.g., the identification of the beneficiary), or because the payment service provider of the payer or the beneficiary had taken advantage of the error for their own benefit, or because, once the existence of the error had been communicated without delay, one or the other had not taken the measures required by the diligence of an expert trader to allow retroaction or, where appropriate, to minimize the damage.”

        Regulation (EU) 2024/886: a paradigm shift

        And in this scenario fraught with doubts, Regulation (EU) 2024/886 bursts onto the scene, representing a 180-degree turn and a paradigm shift: the new European Regulation, approved in April 2024 and coming into force on October 9, 2025, establishes a clear obligation for banks: they must verify that the name of the beneficiary provided by the payer matches the IBAN holder before executing an immediate transfer in euros.

        The new features of this regulation are

        • mandatory application to all instant transfers within the SEPA area,
        • the new name matching system: if there is a discrepancy between the name and the IBAN, the bank must alert the customer before executing the transaction, and
        • increased liability for financial institutions in the event of fraud or error due to lack of verification.

        In short, the aim is to reduce the risk of fraud, protect consumers, and increase confidence in digital payments.

        This means that Law 19/2018, which regulates payment services in Spain and does not require verification of the beneficiary’s identity, is now outdated, underscoring the need for a national legislative review to harmonize the legal framework with European requirements.

        In conclusion, the obligation to verify the beneficiary of transfers represents a significant step forward in consumer protection and the fight against financial fraud. Regulation (EU) 2024/886 marks a turning point in banking operations, imposing an active responsibility on institutions to ensure the authenticity of transfers.

        In any case, the question remains open regarding the solution to MITM frauds executed before October 9, 2025, and the responsibility of the banking institution. For the time being, the aforementioned Supreme Court ruling of March 27 closes the door to claims against banks, but it cannot be ruled out that the entry into force of Regulation 2024/886 and the paradigm shift will lead to a rethinking of the Supreme Court’s position in line with the quasi-objective liability that lower courts have been maintaining. We will have to wait and see, but such a change would be a great success for bank users who have suffered from this MITM fraud and all other types of cyber fraud.

        It is quite common for business relationships with agents or distributors to last for years without any signed documents. And be careful, because we know that a contract can exist even verbally.

        The absence of a written contract will add difficulties in the event of a possible claim, so what you do between the decision to terminate, and the moment of the claim is very important. Remember: ‘anything you write will be used against you’.

        The decision to terminate a business relationship is a very delicate moment to which, for some reason, solicitors are not invited. Here are some examples (all real) in which companies or employees with the best of intentions wrote to the agent/distributor. All of them were subsequently very damaging to the company:

        Saying ‘We are terminating our business relationship’ when the strategy will be to argue that no such business relationship exists, but rather that there are separate and linked contracts (e.g., supply rather than ongoing distribution contract; very significant compensation consequences).

        ‘You no longer represent our company’, which may be evidence that you did so before.

        ‘As of day X, you may no longer act on behalf of our company,’ which would prove that you were previously able to act on its behalf.

        ‘You may not attend the X trade fair on our behalf.’ A way of confirming that the agent/distributor’s responsibilities included participating in trade fairs and probably accrediting the customers obtained.

        ‘The sales you promoted have been significantly reduced in year N.’ When there is no written contract or other form of documentation, imputing a breach of an obligation that is not clear can be counterproductive.

        Saying ‘You are not actively promoting our products’ and then adding: ‘We urge you to stop promoting the sale of our products’.

        ‘You are no longer our exclusive representative’, which proves a type of relationship (representation/agent) and a tacit or express agreement (‘exclusivity’).

        ‘We have appointed another representative in your area’, which shows that the agent/distributor had an assigned area and was “representing”.

        ‘From this moment on, orders will be handled by X’, which also confirms a type of relationship.

         

        In summary: from the moment the company considers terminating a commercial relationship, especially when it is not in writing and before sending any letter, it is advisable to think carefully about the strategy in case of a possible claim. This is the best time to seek advice and avoid surprises. Any communication that is not in line with this strategy designed from the outset can only lead to confusion and problems.

        In Spain, companies can be incorporated by legal entities or persons of any nationality, residing in Spain or abroad.

        Incorporation by a natural person

        The foreign citizen who intends to incorporate a Spanish company, and is not a resident in Spain, must obtain a Foreigner Identification Number/ Tax Identification Number (NIE/NIF) prior to the incorporation of the company before a Notary Public.

        To obtain a NIE/NIF, he/she must, alternatively: (i) appear before the Spanish Consulate in his/her country of residence, or (ii) apply for it before the Immigration Office/Police Station in Spain; in both cases personally or through a representative. The representation will be accredited with sufficient power of attorney, in which it is expressly stated that the representative is authorised to present the application to obtain the NIE.

        Once the NIE has been obtained, it must be communicated to the Tax Agency by presenting a Form 030, a photocopy of the passport and a photocopy of the NIE. Once the NIE has been communicated to the Tax Agency, the foreign citizen can now appear before a Notary Public to notarise the Deed of Incorporation of the company, presenting the following documents:

        • The bylaws, with the minimum content required by Spanish law (Model Bylaws of a Public Limited Company, Model Bylaws of a Private Limited Company);
        • The negative certificate of denomination issued by the Central Mercantile Registry (reservation of name for the company);
        • In the case of monetary contributions, the deposit slip issued by the bank accrediting the disbursement of the initial contributions (or, if applicable, the corresponding amount in cash) is required. In the case of Limited Companies, the notary must provide bank proof of payment of a minimum of 3,000 euros, payment to be made directly by the individual who will be the owner of the company’s shares.
        • If the foreign citizen planning to incorporate the company does not appear personally before the Notary, they may do so through a representative. The original power of attorney granted to the representative, duly legalized (by apostille or document legalization) and accompanied by sworn translation, must be provided.
        • The original identification documents (national identity card or passport and NIE/TIE) of the persons who constitute the new company;
        • The foreign investment declaration duly completed. Although merely informative, this mandatory document must be filed with the Foreign Investment Registry of the Ministry of Economy and Competitiveness within one month of the New Company’s incorporation. The notary can take care of it if requested (Form D-1A).

        Incorporation by a legal entity

        The foreign company that plans to incorporate a Spanish company must obtain a Tax Identification Number before the incorporation, in front of a Notary Public, by submitting an application form (EX15).

        This application for a NIF must be signed by a legal representative of the company who, in the event of not being a legal resident in Spain (Spanish or foreigner with a residence permit), must obtain a NIE as a non-resident beforehand.

        If a foreign company grants power of attorney to a legal resident in Spain to obtain the company’s NIF, the Tax Agency requires that the grantor of the power of attorney also have an NIE as a non-resident. If he does not have a NIE, the Tax Administration can grant him a provisional NIE by means of form 030, together with a photocopy of his passport.

        Once empowered, this legal representative of the foreign company must sign the application for the census form (form 036) and this application must be presented, in person, at the Tax Agency office, enclosing:

        • Census declaration (Form 036) signed by the person empowered by the foreign company requesting the NIF, and
        • Power of attorney granted by the authorized representative of the non-resident entity, duly notarized and legalized (see “Legalization and translation of documents”), in which a legal resident person is appointed as representative of the non-resident entity for the purpose of obtaining the NIF.

        Once the foreign company is registered with the Tax Agency, it can proceed with the incorporation.

        Introduction: A Paradigm Shift in Conflict Resolution

        The approval of Organic Law 1/2025, of January 2, on measures for the efficiency of the Public Justice Service, marks a turning point in the Spanish judicial system. This legislation is not limited to introducing procedural changes, but reflects a profound transformation in the very concept of justice. The legislator has made a firm commitment to promoting alternatives to the judicial resolution of disputes, making prior negotiation a central element of the system.

        The saturation of the courts, the costs associated with judicial proceedings, and the search for more satisfactory solutions for the parties have prompted this reform, which places the so-called “appropriate means of non-jurisdictional dispute resolution” as the cornerstone of a new justice model oriented towards dialogue and agreement.

        The philosophy behind alternative means of dispute resolution

        Beyond the decongestion of the courts, this reform responds to a philosophy that understands that not all conflicts necessarily require a judicial response. Alternative means of dispute resolution are based on the premise that many conflicts can find more satisfactory and lasting solutions, adapted to the needs and interests of the parties, when they actively participate in their construction.

        Organic Law 1/2025 defines these means as “any type of negotiating activity, recognized in this or other laws, state or autonomous, to which the parties to a conflict resort in good faith with the aim of finding an extrajudicial solution to it, either by themselves or with the intervention of a neutral third party”. This broad and flexible definition is intended to cover various forms of negotiation whose common denominator is the protagonism of the parties in the resolution of their own disputes.

        A range of possibilities: Diversity of mechanisms for diversity of conflicts

        One of the most noteworthy aspects of the new regulation is that it does not rely on a single model of alternative dispute resolution but recognizes the diversity of situations and the need to offer different tools adapted to each particular case.

        Mediation, already consolidated in our legal system through Law 5/2012, maintains its relevance as the preferred method, but other modalities such as conciliation in its various variants (notarial, registry, before a lawyer of the Administration of Justice or judicial), the opinion of independent experts, confidential binding offers, or the novel process of collaborative law are added to it.

        This plurality of mechanisms reflects the complexity of contemporary legal relationships and the need to provide tailored responses to each type of conflict. Resolving a neighborhood dispute is not the same as resolving a complex business dispute, and the legislator has been aware that “one size fits all” would not be effective for the diversity of situations that may arise.

        The controversial commitment to enforceability: The requirement of procedural validity

        Undoubtedly, the most innovative -and probably the most controversial- aspect of the new regulation is the configuration of these means as a mandatory prerequisite for resorting to judicial proceedings in certain areas. This decision represents a qualitative leap with respect to the previous regulation, which mainly favored the voluntary nature of these mechanisms.

        From the entry into force of Organic Law 1/2025, April 3, 2025, the claim in the civil jurisdictional order will not be admitted if it is not justified that the resolution of the conflict has been previously attempted by any of the recognized alternative ways. Not only that, but also the identity between the object of the previous negotiation and the object of the litigation to be initiated must be established.

        This mandatory nature has been the subject of intense debate. Its advocates argue that it is necessary to promote cultural change in a traditionally litigious society, while its detractors warn of the risk of turning these mechanisms into mere formalities that distort their true purpose.

        The truth is that the legislator has tried to find a balance, excluding from this obligation certain particularly sensitive matters or those which, by their nature, require an immediate judicial response. Thus, issues such as the judicial protection of fundamental rights, measures for the protection of minors, or the request for precautionary measures, among others, are exempted from the requirement of prior negotiation.

        The guiding principles: Autonomy and confidentiality as pillars of the system

        The effectiveness of alternative dispute resolution rests mainly on two fundamental principles: the autonomy of the parties and the confidentiality of the process.

        The principle of private autonomy recognizes that the parties themselves best know their interests and needs and are, therefore, in the best position to find solutions adapted to their situation. The law establishes that the parties are free to settle, if they respect the law, good faith, and public policy. This freedom is essential for the solutions reached to be truly satisfactory and lasting.

        The principle of confidentiality is crucial to creating a climate of trust that allows the parties to express themselves freely during the negotiation process. The law establishes that the information and documentation disclosed during the negotiation must be kept confidential, with very specific exceptions, such as express waivers by the parties, court orders in criminal matters, or reasons of public order.

        This duty of confidentiality extends to all participants in the process: the parties, their lawyers, and, where appropriate, the neutral third party involved. The aim is to ensure that what is said or proposed during the negotiation cannot be used later in a possible judicial process, thus promoting a sincere and constructive dialogue.

        The Negotiation Process: Relevant Procedural Aspects

        The regulation of the procedural aspects of the different means of dispute resolution also reflects the legislator’s desire to combine the necessary flexibility with the minimum guarantees required.

        As regards standing, the initiative to resort to these mechanisms may come from either party, from both by mutual agreement, or even from a judicial referral. This recognizes both the parties’ autonomy and the possibility that the judicial system itself may encourage the use of these alternative channels.

        Regarding the involvement of professionals, the law generally prefers a non-mandatory approach to legal assistance, except in specific situations like the preparation of binding offers (with exceptions for smaller amounts). This flexibility aims to enhance access to these mechanisms; however, the complexity of many legal disputes often makes it wise to seek professional guidance.

        A particularly relevant aspect is the effect that the request for these mechanisms has on the statute of limitations and expiration periods. The law establishes that such a request interrupts the statute of limitations or suspends the expiration of actions from the date of communication to the other party, thus avoiding the attempt of an amicable solution that may prejudice the rights of the party that promotes it.

        In terms of form, the preferred method is face-to-face, although the use of telematic means is permitted by agreement of the parties or in the case of claims for amounts of less than 600 euros. This flexibility is particularly appropriate in a context of increasing digitalization of legal relations.

        Specific Modalities: Diversity of mechanisms for diversity of conflicts

        Among the different modalities recognized by the law, it is worthwhile to focus on some that present particularly novel or relevant characteristics.

        Private conciliation involves the intervention of a person with technical or legal expertise related to the dispute’s subject matter. The law requires this person to be registered in a recognized professional association or in a register of mediators and to act impartially and confidentially. This mechanism takes advantage of the specialized knowledge of certain professionals to facilitate agreement in technically complex matters.

        The confidential binding offer is a particularly interesting mechanism for certain types of disputes. One of the parties makes an offer that is binding on it in the event of acceptance by the other party. The law requires that the identity of the offeror, the actual receipt by the other party, and the detailed content of the offer be recorded. This instrument can be particularly useful in financial claims, where the main obstacle to settlement is often the amount.

        The independent expert opinion consists of commissioning an opinion from an expert in the subject matter of the dispute. Unlike other mechanisms, this opinion is not binding, but may serve as a basis for agreement if the parties accept it, or at least to clarify the technical aspects of the dispute. Following the issuance of the opinion, the parties may accept it as an agreement, propose improvements or reject it, in which case the procedural requirement is deemed to be fulfilled.

        Finally, the collaborative law process represents perhaps the most innovative aspect of the new regulation. It is a structured negotiation in which the parties, assisted by their respective lawyers, work together to reach a satisfactory solution, being able to integrate other professionals (psychologists, economists, etc.) when the complexity of the case requires it. At the end, minutes are drawn up with the participants, the sessions held and the agreements reached.

        The challenge of implementation: From theory to practice

        The real effectiveness of this new system will depend largely on how it is implemented in practice. It is not enough to make it compulsory to attempt out-of-court settlement; this attempt must be genuine and not become a mere formality.

        In this regard, the law requires that the negotiation attempt be “real and credible; it cannot be fictitious.” To this end, it establishes documentation requirements that vary depending on whether or not a neutral third party is involved but always include a responsible statement that the parties have intervened in good faith in the process.

        Likewise, the law regulates in detail when the negotiation process is understood to be concluded, whether it concludes with or without an agreement. In the event of an agreement, it must be formalized by identifying the parties and, if applicable, their lawyers and the neutral third party, indicating the place and date, as well as the obligations assumed by each party.

        The possibility of converting the agreement into a public deed to convert it into an enforceable title reinforces its value and facilitates its compliance, avoiding the possibility of non-compliance with the agreement, forcing the initiation of a declaratory judicial proceeding.

        A horizon to be explored: Perspectives and challenges

        Organic Law 1/2025 represents a turning point in the conception of justice in Spain, bringing us closer to models already consolidated in other countries with a long tradition in alternative means of conflict resolution. The United States, Canada and the Nordic countries have been using these mechanisms for decades, with generally positive results in terms of user satisfaction and decongestion of the courts.

        However, each legal system has its particularities, and the success of these mechanisms depends not only on their legal regulation but also on cultural, sociological, and organizational factors. Spanish society’s traditional litigiousness, the poor negotiating culture in certain areas, and the lack of specific training of many professionals are challenges that must be faced.

        The commitment to obligatory nature as an initial impulse may be understandable in a context of paradigm change, but the real success of these mechanisms will come from their capacity to generate satisfactory solutions that will progressively make them the preferred option on their own merits, beyond their obligatory nature.

        Conclusion: Between Hope and Caution

        The new regulation of the appropriate means of non-jurisdictional dispute resolution is in line with a clear international trend towards the promotion of alternatives to judicial dispute resolution. This trend responds both to practical needs – decongesting the courts, reducing costs – and to a philosophy that values the protagonism of the parties in the management of their own conflicts.

        In this sense, Spanish legislation joins a global movement that has shown positive results in many jurisdictions. However, only time will tell whether the legislative technique used, especially the commitment to mandatory nature as a procedural requirement, is the most appropriate to achieve the true purpose of encouraging agreement in order to avoid litigation.

        The success of this reform will depend not only on its regulatory design, but also on factors such as adequate training of the professionals involved, public awareness of the advantages of these alternative routes, and the system’s capacity to evaluate and adapt according to the results obtained.

        In short, we are facing an ambitious and necessary reform, which opens up a hopeful horizon but which will have to overcome important challenges in order to consolidate itself as a true paradigm shift in the administration of justice in Spain. The true criterion of success will not be the number of negotiation attempts made, but the quality of the agreements reached and the satisfaction of citizens with a more participatory, efficient justice system adapted to their real needs.

        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.

        Generative artificial intelligence (generative AI) is a variant of artificial intelligence aimed at creating models capable of generating new and original content. These models are trained to learn patterns and features from data sets, and can then generate similar or even completely new content based on those learned patterns.

        A specific type of generative model is the generative neural network (GAN). GANs consist of two neural networks, one generative and one discriminative, working together. The generative network creates new content, while the discriminative network evaluates the authenticity of that content. The generative model can produce increasingly realistic results as these networks compete and improve.

        Generative AI has applications in various areas, such as art creation, creative text generation, speech synthesis, and so on. It is also used in fields such as image enhancement and machine translation. This approach has advanced significantly in recent years and continues to be an active area of research in artificial intelligence.

        Generative artificial intelligence applied to the legal sector involves using generative models to assist in various tasks and processes related to legal practice.

        Positive aspects of generative AI applied to the legal sector

        The integration of generative artificial intelligence in the legal field has emerged as a transformative catalyst, providing a number of significant benefits that positively impact the efficiency, accuracy, and accessibility of legal services. Throughout this evolution, several aspects highlight the substantial contribution of artificial intelligence to legal practice.

        Some of these benefits are highlighted below:

        Legal Document Drafting

        Generative AI can be used to draft legal documents, contracts and other legal texts. It can generate content based on patterns learned from large sets of legal data, facilitating the creation of standard documents and reducing the workload for legal professionals, also ensuring consistency and accuracy in legal drafting, reducing risks associated with possible human errors.

        Analysis of large volumes of data

        The ability to process information at a speed and scale that surpasses human abilities enables the identification of patterns, trends and precedents with greater speed and accuracy. This advanced analysis helps strengthen legal arguments, improve strategic decision-making and provide clients with stronger legal representation.

        Improved legal research

        Generative artificial intelligence systems can perform faster and more accurate searches of legal databases, law libraries and case law. This streamlines the legal research process, providing professionals with access to relevant information more efficiently.

        Legal Argument Generation

        Generative IA can help generate sound legal arguments. By understanding case law and legal principles, it can help lawyers build better arguments and develop strategies for specific cases.

        Automated Legal Advice

        Automated legal advice systems can be developed that use generative AI to answer common legal questions and provide basic guidance. This could be useful for simpler legal queries and to improve access to legal information.

        Personalized legal advice

        Artificial intelligence can analyze case-specific data and provide personalized legal advice. This helps legal professionals make more informed and strategic decisions by considering situation-specific factors.

        Legal Scenario Simulation

        Generative AI can simulate legal scenarios to help lawyers evaluate possible outcomes and risks in particular cases. This could be useful in strategic decision-making and legal planning.

        Automation of repetitive tasks

        The ability of artificial intelligence systems to take on the workload related to standard document review and basic information management allows legal professionals to focus on more complex and strategic issues. This automation not only saves time but also decreases the likelihood of human error, thus strengthening the overall quality of legal work.

        Optimization of internal processes

        Artificial intelligence can significantly improve efficiency in case management, meeting scheduling, and other day-to-day operations in law firms. This optimization not only streamlines internal practices but also enables more efficient resource allocation and more effective workload management.

        In short, the application of generative artificial intelligence in the legal sector transcends the mere automation of tasks, encompassing fundamental aspects that improve the quality and efficiency of legal services. From the automation of routine tasks to advanced data analysis and document generation, artificial intelligence is a powerful ally that drives positive developments in legal practice. This advancement not only improves the internal efficiency of law firms, but also strengthens the ability of legal professionals to provide accurate and strategic advice in an ever-changing legal environment.

        While generative AI offers many possibilities, its implementation in the legal sector must be approached cautiously to ensure accuracy, ethics, and compliance with applicable laws and regulations. Human intervention and legal oversight remain essential to ensure quality and accountability in using these technologies.

        Negative aspects of the application of generative AI to the legal sector

        While promising, the integration of generative artificial intelligence in the legal sector poses a number of challenges and negative aspects that require attention and careful consideration. Despite significant advances in automation and process improvement, addressing the following adverse aspects is crucial to ensure an ethical and effective implementation.

        Lack of human discernment

        Although artificial intelligence systems can analyze data at impressive speed, they lack human understanding and sensitivity. Interpreting legal nuances, understanding emotional contexts, and making decisions based on ethics are skills intrinsic to legal professionals. Over-reliance on technology in interpreting complex situations could result in inadequate or insensitive assessments.

        Risk of algorithmic bias

        Algorithms used in generative artificial intelligence are trained on historical data, and if that data contains cultural, ethnic, or gender biases, the results generated may reflect and perpetuate those biases. This raises ethical and legal concerns, as automated decisions could be inherently discriminatory, affecting fairness and justice in the legal system.

        Data security and privacy

        The implementation of artificial intelligence in the legal field involves handling highly confidential information. Systems’ vulnerability to cyber attacks could expose sensitive data, compromising the confidentiality and integrity of the legal system. Good protection against cyber threats is essential to maintaining confidence in these technologies.

        Job displacement

        As artificial intelligence takes over routine and repetitive tasks, there is a risk that certain jobs in the legal sector will be affected. This raises questions about role restructuring and the need for legal professionals to acquire new skills to adapt to a changing work environment. The ethics of this displacement and measures to mitigate its impacts must be carefully addressed.

        Ethical complexity in decision making

        Generative artificial intelligence algorithms often operate opaquely, meaning that the logic behind their decisions can be difficult to understand or explain. This raises ethical questions about accountability and transparency in legal decision-making, especially in critical cases where a clear explanation of decisions is critical.

        Costs associated with implementation

        From initial development to ongoing training and system maintenance, law firms, especially smaller ones, can face significant financial challenges. This raises the issue of equity in access to these technologies and the need to seek solutions that do not perpetuate inequities in the legal system.

        Cultural resistance and adaptation

        Cultural resistance and adaptation are factors that should not be overlooked. The introduction of generative artificial intelligence may encounter resistance among legal professionals who may be reluctant to rely on emerging technologies. Organizational culture and acceptance of these tools may require time and effort for successful implementation. Training and effective communication are essential to overcome these barriers.

        In conclusion, the application of generative artificial intelligence in the legal sector, while offering significant benefits, is not without its challenges. Addressing the lack of human discernment, mitigating the risk of algorithmic bias, ensuring data security and privacy, managing labor displacement, addressing ethical complexity in decision making, and managing associated costs are imperative for ethical and effective implementation. Careful thought and appropriate regulation are essential to harness the benefits of artificial intelligence without compromising fundamental principles of fairness and justice in the legal system.

        The Commercial Court No. 17 of Madrid has ruled in the SuperLiga case following the guidelines set by the CJEU in its decision of December 21 last year.

        The lawsuit was filed by ESCL, an entity formed by Real Madrid and other soccer clubs to promote the SuperLiga, most of which abandoned the project due to pressure from fans and their governments against FIFA and UEFA, with RFEF and La Liga voluntarily joining the defendants.

        As usually happens with elections, but not with sentences, everyone, plaintiffs and defendants, has shown their satisfaction with this ruling, which is not yet final, as it can be appealed before the Provincial Court of Madrid.

        In brief, the proceedings involved whether the FIFA/UEFA regulations on the organization and authorization of soccer competitions and the management of the rights deriving from such competitions were in accordance with Community competition law, articles 101 and 102 of the TFEU.

        The CJEU judgment of last December had already ruled that the regulatory rules of FIFA and UEFA relating to prior authorization and participation, which give these entities the power to prevent any competing company from accessing the market, constitute an abuse of a dominant position and infringe the provisions of Articles 101 and 102 TFEU, mainly because they are not accompanied by certain limits and controls guaranteeing transparency and objectivity in the decision not to authorize such international competitions, which allow the risk of abuse of a dominant position to be excluded.

        Likewise, the Court of Justice, using the same arguments and about the exploitation rights deriving from sporting competitions, states that the FIFA and UEFA rules are contrary to the provisions of Articles 101 and 102 TFEU, since they attribute to themselves exclusive responsibility for the marketing of the rights in question.

        Following the guidelines set by the CJEU judgment, the judgment of Madrid Commercial Court No. 17 partially upheld the lawsuit filed by ESLC against UEFA and FIFA. It declared that both organizations have abused their dominant position and are preventing free competition in the market by granting themselves the discretionary power to prohibit participation in alternative competitions and impose unjustified and disproportionate restrictions, conduct that infringes Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

        The ruling condemns FIFA and UEFA to cease the anticompetitive conduct sanctioned and prohibits them from repeating them in the future. It also condemns them to immediately remove all the effects of the anticompetitive actions that occurred before or during the duration of the lawsuit, which began on April 18, 2021, when ESLC announced the launch of the SupeLiga.

        Finally, the judgment states that the content of the declarations issued by FIFA, UEFA and other entities (including the federations and leagues of England, Italy and Spain, some of whose clubs were part of the project) on April 18, 2021 (referred to in the lawsuit as the ‘Declaration’) in relation to the pan-European international competition project, also infringes Articles 101 and 102 TFEU.

        It should be noted that the judgment expressly states that “inasmuch as the SuperLiga in the terms initially set forth in the lawsuit, i.e. in accordance with the initial project has been abandoned and discarded by the promoters themselves, the motions in relation thereto must likewise lapse; it is not possible to impose a prohibition or restriction in the abstract, i.e. to impose a prohibition in the future of any other project or modification of the one already presented”.

        Based on this argument, the Judgment rejects the requests included in section f) of the lawsuit which, in summary, requested that FIFA and UEFA be ordered to refrain from any conduct, measure, or action or issue any statement that prevents or hinders in any way the preparation of the SuperLiga; and the commercial judge concludes by stating in this regard that the purpose of these proceedings is not “the authorization of any competition, but to lay the foundations to channel a system of free competition for the organization of soccer competitions”.

        Thereafter, everyone is happy with the result; La Liga issued a statement stressing that the ruling does not endorse a project which, moreover, according to the same ruling, has been abandoned by its promoters. UEFA says that it is pleased to note that the judge has given a good and valid system of prior authorization for third-party competitions to be approved in accordance with UEFA’s authorization rules and has recognized the undoubted benefits of these rules for the soccer sporting system, concluding that “the judgment does not give third parties the right to develop competitions without authorization and does not refer to any future project or to any modified version of an existing project”.

        The plaintiffs, too, are happy and content to proclaim that UEFA’s statutes and the aggressive measures taken to protect its monopoly have stifled innovation for decades. Clubs should not have to fear threats of sanctions simply for having ideas and having conversations. The era of monopoly is definitely over.

        Rarely does one find that a judgment leaves all the litigants so happy and content, but that seems to be the case here. Or at least that is what all of them have been interested in communicating, when the harsh reality is, on the one hand, that the SuperLiga project as it was structured when the lawsuit started and FIFA/UEFA reacted furiously, is dead and buried, and on the other hand, that the happy world in which FIFA and UEFA regulated soccer and competitions as a private preserve, considered themselves immune and alien to ordinary justice and shared the money generated without being accountable to the Courts of Justice and threatened to expel or expel the rebellious spirits, has come to an end.

        Commercial agents have specific regulations with rights and obligations that are “mandatory”: those who sign an agency contract cannot derogate from them. Answering whether an influencer can be an agent is essential because, if he or she is an agent, the agent regulations will apply to him or her.

        Let’s take it one step at a time. The influencer we will talk about is the person who, with their actions and comments (blogs, social media accounts, videos, events, or a bit of everything), talks to their followers about the advantages of certain products or services identified with a certain third-party brand. In exchange for this, the influencer is paid.[1]

        A commercial agent is someone who promotes the contracting of others’ products or services, does so in a stable way, and gets paid in return. He or she can also conclude the contract, but this is not essential.

        The law imposes certain obligations and guarantees rights to those signing an agency contract. If the influencer is considered an “agent”, he or she should also have them. And there are several of them: for example, the duration, the notice to be given to terminate the contract, the obligations of the parties… And the most relevant, the right of the agent to receive compensation at the end of the relationship for the clientele that has been generated. If an influencer is an agent, he would also have this right.

        How can an influencer be assessed as an agent? For that we must analyse two things: (a) the contract (and be careful because there is a contract, even if it is not written) and (b) how the parties have behaved.

        The elements that, in my opinion, are most relevant to conclude that an influencer is an agent would be the following:

         

        a) the influencer promotes the contracting of services or the purchase of products and does so independently.

        The contract will indicate what the influencer must do. It will be clearer to consider him as an agent if his comments encourage contracting: for example, if they include a link to the manufacturer’s website, if he offers a discount code, if he allows orders to be placed with him. And if he does so as an independent “professional”, and not as an employee (with a timetable, means, instructions).

        It may be more difficult to consider him as an agent if he limits himself to talking about the benefits of the product or service, appearing in advertising as a brand image, and using a certain product, and speaking well of it. The important thing, in my opinion, is to examine whether the influencer’s activity is aimed at getting people to buy the product he or she is talking about, or whether what he or she is doing is more generic persuasion (appearing in advertising, lending his or her image to a product, carrying out demonstrations of its use), or even whether he or she is only seeking to promote himself or herself as a vehicle for general information (for example, influencers who make comparisons of products without trying to get people to buy one or the other). In the first case (trying to get people to buy the product) it would be easier to consider it as an “agent”, and less so in the other examples.

         

        b) this “promotion” is done in a continuous or stable manner.

        Be careful because this continuity or stability does not mean that the contract has to be of indefinite duration. Rather, it is the opposite of a sporadic relationship. A one-year contract may be sufficient, while several unconnected interventions, even if they last longer, may not be sufficient.

        In this case, influencers who make occasional comments, who intervene with isolated actions, who limit themselves to making comparisons without promoting the purchase of one or the other, and even if all this leads to sales, even if their comments are frequent and even if they can have a great influence on the behavior of their followers, would be excluded as agents.

         

        c) they receive remuneration for their activity.

        An influencer who is remunerated based on sales (e.g., by promoting a discount code, a specific link, or referring to your website for orders) can more easily be considered as an agent. But also, if he or she only receives a fixed amount for their promotion. On the other hand, influencers who do not receive any remuneration from the brand (e.g. someone who talks about the benefits of a product in comparison with others, but without linking it to its promotion) would be excluded.

         

        Conclusion

        The borderline between what qualifies an influencer as an agent and what does not can be very thin, especially because contracts are often not unambiguous and sometimes their services are multiple. The most important thing is to carefully analyse the contract and the parties’ behaviour.

        An influencer could be considered a commercial agent to the extent that his or her activity promotes the contracting of the product (not simply if he or she carries out informative or image work), that it is done on a stable basis (and not merely anecdotal or sporadic) and in exchange for remuneration.

        To assess the specific situation, it is essential to analyse the contract (if it is written, this is easier) and the parties’ behaviour.

        In short, to draw up a contract with an influencer or, if it has already been signed, but you want to conclude it, you will have to pay attention to these elements. As an influencer you may have a strong interest in being considered an agent at the end of the contract and thus be entitled to compensation, while as employer you will prefer the opposite.

        FINAL NOTE. In Spain and at the date of this comment (9 June 2024) I am not aware of any judgement dealing with this issue. My proposal is based on my experience of more than 30 years advising and litigating on agency contracts. On the other hand, and as far as I know, there is at least one judgment in Rome (Italy) dealing with the matter: Tribunale di Roma; Sezione Lavoro 4º, St. 2615 of 4 March 2024; R. G. n. 38445/2022.

        Ignacio Alonso

        Practice areas

        • Agency
        • Corporate
        • Distribution
        • Franchising
        Contact Ignacio

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          Spain – Generative artificial intelligence in the legal sector

          30 July 2024

          • Spain
          • Artificial intelligence

          The increase in so-called cybercrime in recent years is so significant that it requires strong legislative and judicial responses. Losses from online fraud in Europe exceed $100 billion, according to Nasdaq Ventures, of which $5 billion correspond to Spain.

          In Spain, 192,375 cases of computer fraud were reported in 2019, but by 2023 this figure had risen to 427,448. According to the latest official data available, computer fraud accounts for 90.4% of all cybercrimes, with growth of 378% between 2016 and 2023.

          There are many different types of computer fraud, and they are named in English (after all, the lingua franca of our time), including, among other ingenious methods used by skilled fraudsters, those with curious and amusing names (except for those who suffer from them) such as phishing, pharming, juice jacking, tabnabbing, bluesnarfing, catfishing, spoofing, vishing, smishing, whaling, carding, and the one we are interested in today, man in the middle (MITM).

          Man in the Middle scam: how it works

          This MITM fraud involves intercepting communications between two devices connected to a network, allowing the attacker to alter and divert messages exchanged between users. The fraudster intercepts a communication in which one user requests a payment from another and then modifies the IBAN of the bank account to which the transfer should be made in order to obtain the money. The process generally unfolds as follows:

          • Without the company noticing, an attacker intercepts and manipulates an email, changing the IBAN number of the account to which the payment should be made.
          • The cybercriminal impersonates the supplier, sending the message from an email address that is almost identical to the original, but with a slight alteration that is almost imperceptible.
          • The receiving company, trusting the authenticity of the message, makes the transfer to the fraudulent account.

           

          This results in a transfer of assets to the detriment of the person ordering the transfer and in favor of the cyber thief, so that when the person ordering the transfer notices the error, their first reaction is to try to contact the receiving bank in the hope that the funds can be blocked in time. However, in most cases, the cybercriminal has been quicker: the money has already been transferred to another account or withdrawn, leaving little room for maneuvering, except for the initiation of legal proceedings, which we will discuss below.

          The immediate question is what responsibility the bank that has received the transfer order from the deceived user and credits the cyber fraudster’s account with the amount in question has in cases where the payer identifies not only the (fraudulent) IBAN but also the name of the beneficiary of the payment order, which obviously does not match the name of the holder of the bank account receiving the funds.

          The common-sense answer would be that the bank receiving the transfer should confirm that the holder of the account to which the funds are credited and the individual or entity identified as the beneficiary in the transfer order match; if this is not the case, it should suspend the payment and request clarification from the payer. However, this is not the case in light of EU legislation and its transposition into Spanish law, as we will see below.

          Until October 9, the European banking system operated under the premise that the validity of a transfer was based exclusively on the correctness of the IBAN. In other words, if the account number was correct, the transaction was considered valid, even if the beneficiary’s name did not match. This practice has led to numerous cases of fraud, unintentional errors, and loss of funds, especially in instant transfers, where speed can compromise security.

          The most reasonable option for the defrauded payer to recover their money is to sue the bank receiving the payment order (with which they have no contractual relationship) for non-contractual liability under Article 1124 of the Civil Code; in fact, criminal proceedings against the account holder, who is usually referred to in slang as a “mule,” do not usually have a satisfactory outcome, both because the bird usually flies away and because of its lack of solvency.

          The case law of the Provincial Courts has been divided between rulings that strictly and faithfully applied Article 59 of Royal Decree-Law 19/2018 of November 23, on payment services and other urgent financial measures, dismissing the claims of those defrauded, and others in which arguments were sought under the premise of lack of diligence to condemn the bank to compensate the payer.

          This has led to the establishment of quasi-objective liability for banks in relation to digital fraud, imposing a higher standard of diligence on them and transferring the risk inherent in online banking to them, except in cases of willful misconduct or gross negligence on the part of the customer. This line of reasoning, which has been developed from lower court rulings (AP Madrid 178/2015; AP Alicante 107/2018; AP Valencia 212/2021) to the Supreme Court itself (STS 571/2025, among others), is in line with the idea that it is up to the bank to prove that its systems were secure, up to date, and sufficient to prevent the crime from being committed.

          In this context, the concept of bonus argentarius takes on renewed relevance. This is a principle that was included in Law 57/68 to protect home buyers in the real estate sector, but the Supreme Court has ruled on several occasions that it can also be applied to other financial investments. This means that, in the event of losses due to negligence on the part of the financial institution, the customer can file a claim under Law 57/68 and hold the institution liable.

          The bonus argentarius is based on the presumption of fault on the part of the financial institution, which means that even if the customer has no concrete evidence of negligence, it is assumed due to the duty of care that the institution must exercise in the management of investments.

          Based on this principle, the diligence required of financial professionals is not that of the average trader or pater familias, but that of a qualified expert who assumes the obligation to protect the funds entrusted to them by implementing “necessary and renewable” security mechanisms. This implies not only maintaining basic technical measures for enhanced authentication, but also proactively adopting internationally recognized anti-fraud solutions, such as name-IBAN verification (Confirmation of Payee or IBAN-Naam Check), which have proven effective in comparable jurisdictions.

          In line with that doctrine and case law, it can be said that the omission of beneficiary verification measures today constitutes a breach of the contractual duty of diligence and good faith (Articles 1104 and 1258 of the Civil Code), giving rise to civil liability for the damage caused, such that MITM fraud cannot be considered a residual risk attributable to the customer, but rather a systemic security failure attributable to the financial institution, as the designer and custodian of the electronic payment channel.

          In this state of affairs, the Supreme Court, in its recent ruling of March 27, 2025, opted for the alternative of strict application of Article 59, arguing that “if the payment service user provides additional information to that required (specification of the information or unique identifier that the payment service user must provide for the correct initiation or execution of a payment order), the payment service provider shall only be liable for the execution of payment transactions in accordance with the unique identifier provided by the payment service user… and that the liability of the payment service provider, both at Community and national level, is such that it fulfills its obligation by executing the payment transaction in accordance with the unique identifier, without the addition of further information implying a higher standard of diligence

          It is true that, in conclusion, the Supreme Court offered a glimmer of hope to defrauded users when it stated that “the interpretation set out above does not exempt the payment service provider from liability when circumstances, unrelated to the provision of additional data, are found to have contributed to the defective execution of the transaction, either because an additional requirement or demand (e.g., the identification of the beneficiary), or because the payment service provider of the payer or the beneficiary had taken advantage of the error for their own benefit, or because, once the existence of the error had been communicated without delay, one or the other had not taken the measures required by the diligence of an expert trader to allow retroaction or, where appropriate, to minimize the damage.”

          Regulation (EU) 2024/886: a paradigm shift

          And in this scenario fraught with doubts, Regulation (EU) 2024/886 bursts onto the scene, representing a 180-degree turn and a paradigm shift: the new European Regulation, approved in April 2024 and coming into force on October 9, 2025, establishes a clear obligation for banks: they must verify that the name of the beneficiary provided by the payer matches the IBAN holder before executing an immediate transfer in euros.

          The new features of this regulation are

          • mandatory application to all instant transfers within the SEPA area,
          • the new name matching system: if there is a discrepancy between the name and the IBAN, the bank must alert the customer before executing the transaction, and
          • increased liability for financial institutions in the event of fraud or error due to lack of verification.

          In short, the aim is to reduce the risk of fraud, protect consumers, and increase confidence in digital payments.

          This means that Law 19/2018, which regulates payment services in Spain and does not require verification of the beneficiary’s identity, is now outdated, underscoring the need for a national legislative review to harmonize the legal framework with European requirements.

          In conclusion, the obligation to verify the beneficiary of transfers represents a significant step forward in consumer protection and the fight against financial fraud. Regulation (EU) 2024/886 marks a turning point in banking operations, imposing an active responsibility on institutions to ensure the authenticity of transfers.

          In any case, the question remains open regarding the solution to MITM frauds executed before October 9, 2025, and the responsibility of the banking institution. For the time being, the aforementioned Supreme Court ruling of March 27 closes the door to claims against banks, but it cannot be ruled out that the entry into force of Regulation 2024/886 and the paradigm shift will lead to a rethinking of the Supreme Court’s position in line with the quasi-objective liability that lower courts have been maintaining. We will have to wait and see, but such a change would be a great success for bank users who have suffered from this MITM fraud and all other types of cyber fraud.

          It is quite common for business relationships with agents or distributors to last for years without any signed documents. And be careful, because we know that a contract can exist even verbally.

          The absence of a written contract will add difficulties in the event of a possible claim, so what you do between the decision to terminate, and the moment of the claim is very important. Remember: ‘anything you write will be used against you’.

          The decision to terminate a business relationship is a very delicate moment to which, for some reason, solicitors are not invited. Here are some examples (all real) in which companies or employees with the best of intentions wrote to the agent/distributor. All of them were subsequently very damaging to the company:

          Saying ‘We are terminating our business relationship’ when the strategy will be to argue that no such business relationship exists, but rather that there are separate and linked contracts (e.g., supply rather than ongoing distribution contract; very significant compensation consequences).

          ‘You no longer represent our company’, which may be evidence that you did so before.

          ‘As of day X, you may no longer act on behalf of our company,’ which would prove that you were previously able to act on its behalf.

          ‘You may not attend the X trade fair on our behalf.’ A way of confirming that the agent/distributor’s responsibilities included participating in trade fairs and probably accrediting the customers obtained.

          ‘The sales you promoted have been significantly reduced in year N.’ When there is no written contract or other form of documentation, imputing a breach of an obligation that is not clear can be counterproductive.

          Saying ‘You are not actively promoting our products’ and then adding: ‘We urge you to stop promoting the sale of our products’.

          ‘You are no longer our exclusive representative’, which proves a type of relationship (representation/agent) and a tacit or express agreement (‘exclusivity’).

          ‘We have appointed another representative in your area’, which shows that the agent/distributor had an assigned area and was “representing”.

          ‘From this moment on, orders will be handled by X’, which also confirms a type of relationship.

           

          In summary: from the moment the company considers terminating a commercial relationship, especially when it is not in writing and before sending any letter, it is advisable to think carefully about the strategy in case of a possible claim. This is the best time to seek advice and avoid surprises. Any communication that is not in line with this strategy designed from the outset can only lead to confusion and problems.

          In Spain, companies can be incorporated by legal entities or persons of any nationality, residing in Spain or abroad.

          Incorporation by a natural person

          The foreign citizen who intends to incorporate a Spanish company, and is not a resident in Spain, must obtain a Foreigner Identification Number/ Tax Identification Number (NIE/NIF) prior to the incorporation of the company before a Notary Public.

          To obtain a NIE/NIF, he/she must, alternatively: (i) appear before the Spanish Consulate in his/her country of residence, or (ii) apply for it before the Immigration Office/Police Station in Spain; in both cases personally or through a representative. The representation will be accredited with sufficient power of attorney, in which it is expressly stated that the representative is authorised to present the application to obtain the NIE.

          Once the NIE has been obtained, it must be communicated to the Tax Agency by presenting a Form 030, a photocopy of the passport and a photocopy of the NIE. Once the NIE has been communicated to the Tax Agency, the foreign citizen can now appear before a Notary Public to notarise the Deed of Incorporation of the company, presenting the following documents:

          • The bylaws, with the minimum content required by Spanish law (Model Bylaws of a Public Limited Company, Model Bylaws of a Private Limited Company);
          • The negative certificate of denomination issued by the Central Mercantile Registry (reservation of name for the company);
          • In the case of monetary contributions, the deposit slip issued by the bank accrediting the disbursement of the initial contributions (or, if applicable, the corresponding amount in cash) is required. In the case of Limited Companies, the notary must provide bank proof of payment of a minimum of 3,000 euros, payment to be made directly by the individual who will be the owner of the company’s shares.
          • If the foreign citizen planning to incorporate the company does not appear personally before the Notary, they may do so through a representative. The original power of attorney granted to the representative, duly legalized (by apostille or document legalization) and accompanied by sworn translation, must be provided.
          • The original identification documents (national identity card or passport and NIE/TIE) of the persons who constitute the new company;
          • The foreign investment declaration duly completed. Although merely informative, this mandatory document must be filed with the Foreign Investment Registry of the Ministry of Economy and Competitiveness within one month of the New Company’s incorporation. The notary can take care of it if requested (Form D-1A).

          Incorporation by a legal entity

          The foreign company that plans to incorporate a Spanish company must obtain a Tax Identification Number before the incorporation, in front of a Notary Public, by submitting an application form (EX15).

          This application for a NIF must be signed by a legal representative of the company who, in the event of not being a legal resident in Spain (Spanish or foreigner with a residence permit), must obtain a NIE as a non-resident beforehand.

          If a foreign company grants power of attorney to a legal resident in Spain to obtain the company’s NIF, the Tax Agency requires that the grantor of the power of attorney also have an NIE as a non-resident. If he does not have a NIE, the Tax Administration can grant him a provisional NIE by means of form 030, together with a photocopy of his passport.

          Once empowered, this legal representative of the foreign company must sign the application for the census form (form 036) and this application must be presented, in person, at the Tax Agency office, enclosing:

          • Census declaration (Form 036) signed by the person empowered by the foreign company requesting the NIF, and
          • Power of attorney granted by the authorized representative of the non-resident entity, duly notarized and legalized (see “Legalization and translation of documents”), in which a legal resident person is appointed as representative of the non-resident entity for the purpose of obtaining the NIF.

          Once the foreign company is registered with the Tax Agency, it can proceed with the incorporation.

          Introduction: A Paradigm Shift in Conflict Resolution

          The approval of Organic Law 1/2025, of January 2, on measures for the efficiency of the Public Justice Service, marks a turning point in the Spanish judicial system. This legislation is not limited to introducing procedural changes, but reflects a profound transformation in the very concept of justice. The legislator has made a firm commitment to promoting alternatives to the judicial resolution of disputes, making prior negotiation a central element of the system.

          The saturation of the courts, the costs associated with judicial proceedings, and the search for more satisfactory solutions for the parties have prompted this reform, which places the so-called “appropriate means of non-jurisdictional dispute resolution” as the cornerstone of a new justice model oriented towards dialogue and agreement.

          The philosophy behind alternative means of dispute resolution

          Beyond the decongestion of the courts, this reform responds to a philosophy that understands that not all conflicts necessarily require a judicial response. Alternative means of dispute resolution are based on the premise that many conflicts can find more satisfactory and lasting solutions, adapted to the needs and interests of the parties, when they actively participate in their construction.

          Organic Law 1/2025 defines these means as “any type of negotiating activity, recognized in this or other laws, state or autonomous, to which the parties to a conflict resort in good faith with the aim of finding an extrajudicial solution to it, either by themselves or with the intervention of a neutral third party”. This broad and flexible definition is intended to cover various forms of negotiation whose common denominator is the protagonism of the parties in the resolution of their own disputes.

          A range of possibilities: Diversity of mechanisms for diversity of conflicts

          One of the most noteworthy aspects of the new regulation is that it does not rely on a single model of alternative dispute resolution but recognizes the diversity of situations and the need to offer different tools adapted to each particular case.

          Mediation, already consolidated in our legal system through Law 5/2012, maintains its relevance as the preferred method, but other modalities such as conciliation in its various variants (notarial, registry, before a lawyer of the Administration of Justice or judicial), the opinion of independent experts, confidential binding offers, or the novel process of collaborative law are added to it.

          This plurality of mechanisms reflects the complexity of contemporary legal relationships and the need to provide tailored responses to each type of conflict. Resolving a neighborhood dispute is not the same as resolving a complex business dispute, and the legislator has been aware that “one size fits all” would not be effective for the diversity of situations that may arise.

          The controversial commitment to enforceability: The requirement of procedural validity

          Undoubtedly, the most innovative -and probably the most controversial- aspect of the new regulation is the configuration of these means as a mandatory prerequisite for resorting to judicial proceedings in certain areas. This decision represents a qualitative leap with respect to the previous regulation, which mainly favored the voluntary nature of these mechanisms.

          From the entry into force of Organic Law 1/2025, April 3, 2025, the claim in the civil jurisdictional order will not be admitted if it is not justified that the resolution of the conflict has been previously attempted by any of the recognized alternative ways. Not only that, but also the identity between the object of the previous negotiation and the object of the litigation to be initiated must be established.

          This mandatory nature has been the subject of intense debate. Its advocates argue that it is necessary to promote cultural change in a traditionally litigious society, while its detractors warn of the risk of turning these mechanisms into mere formalities that distort their true purpose.

          The truth is that the legislator has tried to find a balance, excluding from this obligation certain particularly sensitive matters or those which, by their nature, require an immediate judicial response. Thus, issues such as the judicial protection of fundamental rights, measures for the protection of minors, or the request for precautionary measures, among others, are exempted from the requirement of prior negotiation.

          The guiding principles: Autonomy and confidentiality as pillars of the system

          The effectiveness of alternative dispute resolution rests mainly on two fundamental principles: the autonomy of the parties and the confidentiality of the process.

          The principle of private autonomy recognizes that the parties themselves best know their interests and needs and are, therefore, in the best position to find solutions adapted to their situation. The law establishes that the parties are free to settle, if they respect the law, good faith, and public policy. This freedom is essential for the solutions reached to be truly satisfactory and lasting.

          The principle of confidentiality is crucial to creating a climate of trust that allows the parties to express themselves freely during the negotiation process. The law establishes that the information and documentation disclosed during the negotiation must be kept confidential, with very specific exceptions, such as express waivers by the parties, court orders in criminal matters, or reasons of public order.

          This duty of confidentiality extends to all participants in the process: the parties, their lawyers, and, where appropriate, the neutral third party involved. The aim is to ensure that what is said or proposed during the negotiation cannot be used later in a possible judicial process, thus promoting a sincere and constructive dialogue.

          The Negotiation Process: Relevant Procedural Aspects

          The regulation of the procedural aspects of the different means of dispute resolution also reflects the legislator’s desire to combine the necessary flexibility with the minimum guarantees required.

          As regards standing, the initiative to resort to these mechanisms may come from either party, from both by mutual agreement, or even from a judicial referral. This recognizes both the parties’ autonomy and the possibility that the judicial system itself may encourage the use of these alternative channels.

          Regarding the involvement of professionals, the law generally prefers a non-mandatory approach to legal assistance, except in specific situations like the preparation of binding offers (with exceptions for smaller amounts). This flexibility aims to enhance access to these mechanisms; however, the complexity of many legal disputes often makes it wise to seek professional guidance.

          A particularly relevant aspect is the effect that the request for these mechanisms has on the statute of limitations and expiration periods. The law establishes that such a request interrupts the statute of limitations or suspends the expiration of actions from the date of communication to the other party, thus avoiding the attempt of an amicable solution that may prejudice the rights of the party that promotes it.

          In terms of form, the preferred method is face-to-face, although the use of telematic means is permitted by agreement of the parties or in the case of claims for amounts of less than 600 euros. This flexibility is particularly appropriate in a context of increasing digitalization of legal relations.

          Specific Modalities: Diversity of mechanisms for diversity of conflicts

          Among the different modalities recognized by the law, it is worthwhile to focus on some that present particularly novel or relevant characteristics.

          Private conciliation involves the intervention of a person with technical or legal expertise related to the dispute’s subject matter. The law requires this person to be registered in a recognized professional association or in a register of mediators and to act impartially and confidentially. This mechanism takes advantage of the specialized knowledge of certain professionals to facilitate agreement in technically complex matters.

          The confidential binding offer is a particularly interesting mechanism for certain types of disputes. One of the parties makes an offer that is binding on it in the event of acceptance by the other party. The law requires that the identity of the offeror, the actual receipt by the other party, and the detailed content of the offer be recorded. This instrument can be particularly useful in financial claims, where the main obstacle to settlement is often the amount.

          The independent expert opinion consists of commissioning an opinion from an expert in the subject matter of the dispute. Unlike other mechanisms, this opinion is not binding, but may serve as a basis for agreement if the parties accept it, or at least to clarify the technical aspects of the dispute. Following the issuance of the opinion, the parties may accept it as an agreement, propose improvements or reject it, in which case the procedural requirement is deemed to be fulfilled.

          Finally, the collaborative law process represents perhaps the most innovative aspect of the new regulation. It is a structured negotiation in which the parties, assisted by their respective lawyers, work together to reach a satisfactory solution, being able to integrate other professionals (psychologists, economists, etc.) when the complexity of the case requires it. At the end, minutes are drawn up with the participants, the sessions held and the agreements reached.

          The challenge of implementation: From theory to practice

          The real effectiveness of this new system will depend largely on how it is implemented in practice. It is not enough to make it compulsory to attempt out-of-court settlement; this attempt must be genuine and not become a mere formality.

          In this regard, the law requires that the negotiation attempt be “real and credible; it cannot be fictitious.” To this end, it establishes documentation requirements that vary depending on whether or not a neutral third party is involved but always include a responsible statement that the parties have intervened in good faith in the process.

          Likewise, the law regulates in detail when the negotiation process is understood to be concluded, whether it concludes with or without an agreement. In the event of an agreement, it must be formalized by identifying the parties and, if applicable, their lawyers and the neutral third party, indicating the place and date, as well as the obligations assumed by each party.

          The possibility of converting the agreement into a public deed to convert it into an enforceable title reinforces its value and facilitates its compliance, avoiding the possibility of non-compliance with the agreement, forcing the initiation of a declaratory judicial proceeding.

          A horizon to be explored: Perspectives and challenges

          Organic Law 1/2025 represents a turning point in the conception of justice in Spain, bringing us closer to models already consolidated in other countries with a long tradition in alternative means of conflict resolution. The United States, Canada and the Nordic countries have been using these mechanisms for decades, with generally positive results in terms of user satisfaction and decongestion of the courts.

          However, each legal system has its particularities, and the success of these mechanisms depends not only on their legal regulation but also on cultural, sociological, and organizational factors. Spanish society’s traditional litigiousness, the poor negotiating culture in certain areas, and the lack of specific training of many professionals are challenges that must be faced.

          The commitment to obligatory nature as an initial impulse may be understandable in a context of paradigm change, but the real success of these mechanisms will come from their capacity to generate satisfactory solutions that will progressively make them the preferred option on their own merits, beyond their obligatory nature.

          Conclusion: Between Hope and Caution

          The new regulation of the appropriate means of non-jurisdictional dispute resolution is in line with a clear international trend towards the promotion of alternatives to judicial dispute resolution. This trend responds both to practical needs – decongesting the courts, reducing costs – and to a philosophy that values the protagonism of the parties in the management of their own conflicts.

          In this sense, Spanish legislation joins a global movement that has shown positive results in many jurisdictions. However, only time will tell whether the legislative technique used, especially the commitment to mandatory nature as a procedural requirement, is the most appropriate to achieve the true purpose of encouraging agreement in order to avoid litigation.

          The success of this reform will depend not only on its regulatory design, but also on factors such as adequate training of the professionals involved, public awareness of the advantages of these alternative routes, and the system’s capacity to evaluate and adapt according to the results obtained.

          In short, we are facing an ambitious and necessary reform, which opens up a hopeful horizon but which will have to overcome important challenges in order to consolidate itself as a true paradigm shift in the administration of justice in Spain. The true criterion of success will not be the number of negotiation attempts made, but the quality of the agreements reached and the satisfaction of citizens with a more participatory, efficient justice system adapted to their real needs.

          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.

          Generative artificial intelligence (generative AI) is a variant of artificial intelligence aimed at creating models capable of generating new and original content. These models are trained to learn patterns and features from data sets, and can then generate similar or even completely new content based on those learned patterns.

          A specific type of generative model is the generative neural network (GAN). GANs consist of two neural networks, one generative and one discriminative, working together. The generative network creates new content, while the discriminative network evaluates the authenticity of that content. The generative model can produce increasingly realistic results as these networks compete and improve.

          Generative AI has applications in various areas, such as art creation, creative text generation, speech synthesis, and so on. It is also used in fields such as image enhancement and machine translation. This approach has advanced significantly in recent years and continues to be an active area of research in artificial intelligence.

          Generative artificial intelligence applied to the legal sector involves using generative models to assist in various tasks and processes related to legal practice.

          Positive aspects of generative AI applied to the legal sector

          The integration of generative artificial intelligence in the legal field has emerged as a transformative catalyst, providing a number of significant benefits that positively impact the efficiency, accuracy, and accessibility of legal services. Throughout this evolution, several aspects highlight the substantial contribution of artificial intelligence to legal practice.

          Some of these benefits are highlighted below:

          Legal Document Drafting

          Generative AI can be used to draft legal documents, contracts and other legal texts. It can generate content based on patterns learned from large sets of legal data, facilitating the creation of standard documents and reducing the workload for legal professionals, also ensuring consistency and accuracy in legal drafting, reducing risks associated with possible human errors.

          Analysis of large volumes of data

          The ability to process information at a speed and scale that surpasses human abilities enables the identification of patterns, trends and precedents with greater speed and accuracy. This advanced analysis helps strengthen legal arguments, improve strategic decision-making and provide clients with stronger legal representation.

          Improved legal research

          Generative artificial intelligence systems can perform faster and more accurate searches of legal databases, law libraries and case law. This streamlines the legal research process, providing professionals with access to relevant information more efficiently.

          Legal Argument Generation

          Generative IA can help generate sound legal arguments. By understanding case law and legal principles, it can help lawyers build better arguments and develop strategies for specific cases.

          Automated Legal Advice

          Automated legal advice systems can be developed that use generative AI to answer common legal questions and provide basic guidance. This could be useful for simpler legal queries and to improve access to legal information.

          Personalized legal advice

          Artificial intelligence can analyze case-specific data and provide personalized legal advice. This helps legal professionals make more informed and strategic decisions by considering situation-specific factors.

          Legal Scenario Simulation

          Generative AI can simulate legal scenarios to help lawyers evaluate possible outcomes and risks in particular cases. This could be useful in strategic decision-making and legal planning.

          Automation of repetitive tasks

          The ability of artificial intelligence systems to take on the workload related to standard document review and basic information management allows legal professionals to focus on more complex and strategic issues. This automation not only saves time but also decreases the likelihood of human error, thus strengthening the overall quality of legal work.

          Optimization of internal processes

          Artificial intelligence can significantly improve efficiency in case management, meeting scheduling, and other day-to-day operations in law firms. This optimization not only streamlines internal practices but also enables more efficient resource allocation and more effective workload management.

          In short, the application of generative artificial intelligence in the legal sector transcends the mere automation of tasks, encompassing fundamental aspects that improve the quality and efficiency of legal services. From the automation of routine tasks to advanced data analysis and document generation, artificial intelligence is a powerful ally that drives positive developments in legal practice. This advancement not only improves the internal efficiency of law firms, but also strengthens the ability of legal professionals to provide accurate and strategic advice in an ever-changing legal environment.

          While generative AI offers many possibilities, its implementation in the legal sector must be approached cautiously to ensure accuracy, ethics, and compliance with applicable laws and regulations. Human intervention and legal oversight remain essential to ensure quality and accountability in using these technologies.

          Negative aspects of the application of generative AI to the legal sector

          While promising, the integration of generative artificial intelligence in the legal sector poses a number of challenges and negative aspects that require attention and careful consideration. Despite significant advances in automation and process improvement, addressing the following adverse aspects is crucial to ensure an ethical and effective implementation.

          Lack of human discernment

          Although artificial intelligence systems can analyze data at impressive speed, they lack human understanding and sensitivity. Interpreting legal nuances, understanding emotional contexts, and making decisions based on ethics are skills intrinsic to legal professionals. Over-reliance on technology in interpreting complex situations could result in inadequate or insensitive assessments.

          Risk of algorithmic bias

          Algorithms used in generative artificial intelligence are trained on historical data, and if that data contains cultural, ethnic, or gender biases, the results generated may reflect and perpetuate those biases. This raises ethical and legal concerns, as automated decisions could be inherently discriminatory, affecting fairness and justice in the legal system.

          Data security and privacy

          The implementation of artificial intelligence in the legal field involves handling highly confidential information. Systems’ vulnerability to cyber attacks could expose sensitive data, compromising the confidentiality and integrity of the legal system. Good protection against cyber threats is essential to maintaining confidence in these technologies.

          Job displacement

          As artificial intelligence takes over routine and repetitive tasks, there is a risk that certain jobs in the legal sector will be affected. This raises questions about role restructuring and the need for legal professionals to acquire new skills to adapt to a changing work environment. The ethics of this displacement and measures to mitigate its impacts must be carefully addressed.

          Ethical complexity in decision making

          Generative artificial intelligence algorithms often operate opaquely, meaning that the logic behind their decisions can be difficult to understand or explain. This raises ethical questions about accountability and transparency in legal decision-making, especially in critical cases where a clear explanation of decisions is critical.

          Costs associated with implementation

          From initial development to ongoing training and system maintenance, law firms, especially smaller ones, can face significant financial challenges. This raises the issue of equity in access to these technologies and the need to seek solutions that do not perpetuate inequities in the legal system.

          Cultural resistance and adaptation

          Cultural resistance and adaptation are factors that should not be overlooked. The introduction of generative artificial intelligence may encounter resistance among legal professionals who may be reluctant to rely on emerging technologies. Organizational culture and acceptance of these tools may require time and effort for successful implementation. Training and effective communication are essential to overcome these barriers.

          In conclusion, the application of generative artificial intelligence in the legal sector, while offering significant benefits, is not without its challenges. Addressing the lack of human discernment, mitigating the risk of algorithmic bias, ensuring data security and privacy, managing labor displacement, addressing ethical complexity in decision making, and managing associated costs are imperative for ethical and effective implementation. Careful thought and appropriate regulation are essential to harness the benefits of artificial intelligence without compromising fundamental principles of fairness and justice in the legal system.

          The Commercial Court No. 17 of Madrid has ruled in the SuperLiga case following the guidelines set by the CJEU in its decision of December 21 last year.

          The lawsuit was filed by ESCL, an entity formed by Real Madrid and other soccer clubs to promote the SuperLiga, most of which abandoned the project due to pressure from fans and their governments against FIFA and UEFA, with RFEF and La Liga voluntarily joining the defendants.

          As usually happens with elections, but not with sentences, everyone, plaintiffs and defendants, has shown their satisfaction with this ruling, which is not yet final, as it can be appealed before the Provincial Court of Madrid.

          In brief, the proceedings involved whether the FIFA/UEFA regulations on the organization and authorization of soccer competitions and the management of the rights deriving from such competitions were in accordance with Community competition law, articles 101 and 102 of the TFEU.

          The CJEU judgment of last December had already ruled that the regulatory rules of FIFA and UEFA relating to prior authorization and participation, which give these entities the power to prevent any competing company from accessing the market, constitute an abuse of a dominant position and infringe the provisions of Articles 101 and 102 TFEU, mainly because they are not accompanied by certain limits and controls guaranteeing transparency and objectivity in the decision not to authorize such international competitions, which allow the risk of abuse of a dominant position to be excluded.

          Likewise, the Court of Justice, using the same arguments and about the exploitation rights deriving from sporting competitions, states that the FIFA and UEFA rules are contrary to the provisions of Articles 101 and 102 TFEU, since they attribute to themselves exclusive responsibility for the marketing of the rights in question.

          Following the guidelines set by the CJEU judgment, the judgment of Madrid Commercial Court No. 17 partially upheld the lawsuit filed by ESLC against UEFA and FIFA. It declared that both organizations have abused their dominant position and are preventing free competition in the market by granting themselves the discretionary power to prohibit participation in alternative competitions and impose unjustified and disproportionate restrictions, conduct that infringes Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

          The ruling condemns FIFA and UEFA to cease the anticompetitive conduct sanctioned and prohibits them from repeating them in the future. It also condemns them to immediately remove all the effects of the anticompetitive actions that occurred before or during the duration of the lawsuit, which began on April 18, 2021, when ESLC announced the launch of the SupeLiga.

          Finally, the judgment states that the content of the declarations issued by FIFA, UEFA and other entities (including the federations and leagues of England, Italy and Spain, some of whose clubs were part of the project) on April 18, 2021 (referred to in the lawsuit as the ‘Declaration’) in relation to the pan-European international competition project, also infringes Articles 101 and 102 TFEU.

          It should be noted that the judgment expressly states that “inasmuch as the SuperLiga in the terms initially set forth in the lawsuit, i.e. in accordance with the initial project has been abandoned and discarded by the promoters themselves, the motions in relation thereto must likewise lapse; it is not possible to impose a prohibition or restriction in the abstract, i.e. to impose a prohibition in the future of any other project or modification of the one already presented”.

          Based on this argument, the Judgment rejects the requests included in section f) of the lawsuit which, in summary, requested that FIFA and UEFA be ordered to refrain from any conduct, measure, or action or issue any statement that prevents or hinders in any way the preparation of the SuperLiga; and the commercial judge concludes by stating in this regard that the purpose of these proceedings is not “the authorization of any competition, but to lay the foundations to channel a system of free competition for the organization of soccer competitions”.

          Thereafter, everyone is happy with the result; La Liga issued a statement stressing that the ruling does not endorse a project which, moreover, according to the same ruling, has been abandoned by its promoters. UEFA says that it is pleased to note that the judge has given a good and valid system of prior authorization for third-party competitions to be approved in accordance with UEFA’s authorization rules and has recognized the undoubted benefits of these rules for the soccer sporting system, concluding that “the judgment does not give third parties the right to develop competitions without authorization and does not refer to any future project or to any modified version of an existing project”.

          The plaintiffs, too, are happy and content to proclaim that UEFA’s statutes and the aggressive measures taken to protect its monopoly have stifled innovation for decades. Clubs should not have to fear threats of sanctions simply for having ideas and having conversations. The era of monopoly is definitely over.

          Rarely does one find that a judgment leaves all the litigants so happy and content, but that seems to be the case here. Or at least that is what all of them have been interested in communicating, when the harsh reality is, on the one hand, that the SuperLiga project as it was structured when the lawsuit started and FIFA/UEFA reacted furiously, is dead and buried, and on the other hand, that the happy world in which FIFA and UEFA regulated soccer and competitions as a private preserve, considered themselves immune and alien to ordinary justice and shared the money generated without being accountable to the Courts of Justice and threatened to expel or expel the rebellious spirits, has come to an end.

          Commercial agents have specific regulations with rights and obligations that are “mandatory”: those who sign an agency contract cannot derogate from them. Answering whether an influencer can be an agent is essential because, if he or she is an agent, the agent regulations will apply to him or her.

          Let’s take it one step at a time. The influencer we will talk about is the person who, with their actions and comments (blogs, social media accounts, videos, events, or a bit of everything), talks to their followers about the advantages of certain products or services identified with a certain third-party brand. In exchange for this, the influencer is paid.[1]

          A commercial agent is someone who promotes the contracting of others’ products or services, does so in a stable way, and gets paid in return. He or she can also conclude the contract, but this is not essential.

          The law imposes certain obligations and guarantees rights to those signing an agency contract. If the influencer is considered an “agent”, he or she should also have them. And there are several of them: for example, the duration, the notice to be given to terminate the contract, the obligations of the parties… And the most relevant, the right of the agent to receive compensation at the end of the relationship for the clientele that has been generated. If an influencer is an agent, he would also have this right.

          How can an influencer be assessed as an agent? For that we must analyse two things: (a) the contract (and be careful because there is a contract, even if it is not written) and (b) how the parties have behaved.

          The elements that, in my opinion, are most relevant to conclude that an influencer is an agent would be the following:

           

          a) the influencer promotes the contracting of services or the purchase of products and does so independently.

          The contract will indicate what the influencer must do. It will be clearer to consider him as an agent if his comments encourage contracting: for example, if they include a link to the manufacturer’s website, if he offers a discount code, if he allows orders to be placed with him. And if he does so as an independent “professional”, and not as an employee (with a timetable, means, instructions).

          It may be more difficult to consider him as an agent if he limits himself to talking about the benefits of the product or service, appearing in advertising as a brand image, and using a certain product, and speaking well of it. The important thing, in my opinion, is to examine whether the influencer’s activity is aimed at getting people to buy the product he or she is talking about, or whether what he or she is doing is more generic persuasion (appearing in advertising, lending his or her image to a product, carrying out demonstrations of its use), or even whether he or she is only seeking to promote himself or herself as a vehicle for general information (for example, influencers who make comparisons of products without trying to get people to buy one or the other). In the first case (trying to get people to buy the product) it would be easier to consider it as an “agent”, and less so in the other examples.

           

          b) this “promotion” is done in a continuous or stable manner.

          Be careful because this continuity or stability does not mean that the contract has to be of indefinite duration. Rather, it is the opposite of a sporadic relationship. A one-year contract may be sufficient, while several unconnected interventions, even if they last longer, may not be sufficient.

          In this case, influencers who make occasional comments, who intervene with isolated actions, who limit themselves to making comparisons without promoting the purchase of one or the other, and even if all this leads to sales, even if their comments are frequent and even if they can have a great influence on the behavior of their followers, would be excluded as agents.

           

          c) they receive remuneration for their activity.

          An influencer who is remunerated based on sales (e.g., by promoting a discount code, a specific link, or referring to your website for orders) can more easily be considered as an agent. But also, if he or she only receives a fixed amount for their promotion. On the other hand, influencers who do not receive any remuneration from the brand (e.g. someone who talks about the benefits of a product in comparison with others, but without linking it to its promotion) would be excluded.

           

          Conclusion

          The borderline between what qualifies an influencer as an agent and what does not can be very thin, especially because contracts are often not unambiguous and sometimes their services are multiple. The most important thing is to carefully analyse the contract and the parties’ behaviour.

          An influencer could be considered a commercial agent to the extent that his or her activity promotes the contracting of the product (not simply if he or she carries out informative or image work), that it is done on a stable basis (and not merely anecdotal or sporadic) and in exchange for remuneration.

          To assess the specific situation, it is essential to analyse the contract (if it is written, this is easier) and the parties’ behaviour.

          In short, to draw up a contract with an influencer or, if it has already been signed, but you want to conclude it, you will have to pay attention to these elements. As an influencer you may have a strong interest in being considered an agent at the end of the contract and thus be entitled to compensation, while as employer you will prefer the opposite.

          FINAL NOTE. In Spain and at the date of this comment (9 June 2024) I am not aware of any judgement dealing with this issue. My proposal is based on my experience of more than 30 years advising and litigating on agency contracts. On the other hand, and as far as I know, there is at least one judgment in Rome (Italy) dealing with the matter: Tribunale di Roma; Sezione Lavoro 4º, St. 2615 of 4 March 2024; R. G. n. 38445/2022.

          Javier Gaspar Álvarez-Novoa

          Practice areas

          • Art
          • Contracts
          • Corporate
          • Credit collection
          • Foreign investments
          Contact Javier

          Contact Javier





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            Spain – The Spanish sentence on the European super league: everyone is happy

            26 July 2024

            • Spain
            • Antitrust

            The increase in so-called cybercrime in recent years is so significant that it requires strong legislative and judicial responses. Losses from online fraud in Europe exceed $100 billion, according to Nasdaq Ventures, of which $5 billion correspond to Spain.

            In Spain, 192,375 cases of computer fraud were reported in 2019, but by 2023 this figure had risen to 427,448. According to the latest official data available, computer fraud accounts for 90.4% of all cybercrimes, with growth of 378% between 2016 and 2023.

            There are many different types of computer fraud, and they are named in English (after all, the lingua franca of our time), including, among other ingenious methods used by skilled fraudsters, those with curious and amusing names (except for those who suffer from them) such as phishing, pharming, juice jacking, tabnabbing, bluesnarfing, catfishing, spoofing, vishing, smishing, whaling, carding, and the one we are interested in today, man in the middle (MITM).

            Man in the Middle scam: how it works

            This MITM fraud involves intercepting communications between two devices connected to a network, allowing the attacker to alter and divert messages exchanged between users. The fraudster intercepts a communication in which one user requests a payment from another and then modifies the IBAN of the bank account to which the transfer should be made in order to obtain the money. The process generally unfolds as follows:

            • Without the company noticing, an attacker intercepts and manipulates an email, changing the IBAN number of the account to which the payment should be made.
            • The cybercriminal impersonates the supplier, sending the message from an email address that is almost identical to the original, but with a slight alteration that is almost imperceptible.
            • The receiving company, trusting the authenticity of the message, makes the transfer to the fraudulent account.

             

            This results in a transfer of assets to the detriment of the person ordering the transfer and in favor of the cyber thief, so that when the person ordering the transfer notices the error, their first reaction is to try to contact the receiving bank in the hope that the funds can be blocked in time. However, in most cases, the cybercriminal has been quicker: the money has already been transferred to another account or withdrawn, leaving little room for maneuvering, except for the initiation of legal proceedings, which we will discuss below.

            The immediate question is what responsibility the bank that has received the transfer order from the deceived user and credits the cyber fraudster’s account with the amount in question has in cases where the payer identifies not only the (fraudulent) IBAN but also the name of the beneficiary of the payment order, which obviously does not match the name of the holder of the bank account receiving the funds.

            The common-sense answer would be that the bank receiving the transfer should confirm that the holder of the account to which the funds are credited and the individual or entity identified as the beneficiary in the transfer order match; if this is not the case, it should suspend the payment and request clarification from the payer. However, this is not the case in light of EU legislation and its transposition into Spanish law, as we will see below.

            Until October 9, the European banking system operated under the premise that the validity of a transfer was based exclusively on the correctness of the IBAN. In other words, if the account number was correct, the transaction was considered valid, even if the beneficiary’s name did not match. This practice has led to numerous cases of fraud, unintentional errors, and loss of funds, especially in instant transfers, where speed can compromise security.

            The most reasonable option for the defrauded payer to recover their money is to sue the bank receiving the payment order (with which they have no contractual relationship) for non-contractual liability under Article 1124 of the Civil Code; in fact, criminal proceedings against the account holder, who is usually referred to in slang as a “mule,” do not usually have a satisfactory outcome, both because the bird usually flies away and because of its lack of solvency.

            The case law of the Provincial Courts has been divided between rulings that strictly and faithfully applied Article 59 of Royal Decree-Law 19/2018 of November 23, on payment services and other urgent financial measures, dismissing the claims of those defrauded, and others in which arguments were sought under the premise of lack of diligence to condemn the bank to compensate the payer.

            This has led to the establishment of quasi-objective liability for banks in relation to digital fraud, imposing a higher standard of diligence on them and transferring the risk inherent in online banking to them, except in cases of willful misconduct or gross negligence on the part of the customer. This line of reasoning, which has been developed from lower court rulings (AP Madrid 178/2015; AP Alicante 107/2018; AP Valencia 212/2021) to the Supreme Court itself (STS 571/2025, among others), is in line with the idea that it is up to the bank to prove that its systems were secure, up to date, and sufficient to prevent the crime from being committed.

            In this context, the concept of bonus argentarius takes on renewed relevance. This is a principle that was included in Law 57/68 to protect home buyers in the real estate sector, but the Supreme Court has ruled on several occasions that it can also be applied to other financial investments. This means that, in the event of losses due to negligence on the part of the financial institution, the customer can file a claim under Law 57/68 and hold the institution liable.

            The bonus argentarius is based on the presumption of fault on the part of the financial institution, which means that even if the customer has no concrete evidence of negligence, it is assumed due to the duty of care that the institution must exercise in the management of investments.

            Based on this principle, the diligence required of financial professionals is not that of the average trader or pater familias, but that of a qualified expert who assumes the obligation to protect the funds entrusted to them by implementing “necessary and renewable” security mechanisms. This implies not only maintaining basic technical measures for enhanced authentication, but also proactively adopting internationally recognized anti-fraud solutions, such as name-IBAN verification (Confirmation of Payee or IBAN-Naam Check), which have proven effective in comparable jurisdictions.

            In line with that doctrine and case law, it can be said that the omission of beneficiary verification measures today constitutes a breach of the contractual duty of diligence and good faith (Articles 1104 and 1258 of the Civil Code), giving rise to civil liability for the damage caused, such that MITM fraud cannot be considered a residual risk attributable to the customer, but rather a systemic security failure attributable to the financial institution, as the designer and custodian of the electronic payment channel.

            In this state of affairs, the Supreme Court, in its recent ruling of March 27, 2025, opted for the alternative of strict application of Article 59, arguing that “if the payment service user provides additional information to that required (specification of the information or unique identifier that the payment service user must provide for the correct initiation or execution of a payment order), the payment service provider shall only be liable for the execution of payment transactions in accordance with the unique identifier provided by the payment service user… and that the liability of the payment service provider, both at Community and national level, is such that it fulfills its obligation by executing the payment transaction in accordance with the unique identifier, without the addition of further information implying a higher standard of diligence

            It is true that, in conclusion, the Supreme Court offered a glimmer of hope to defrauded users when it stated that “the interpretation set out above does not exempt the payment service provider from liability when circumstances, unrelated to the provision of additional data, are found to have contributed to the defective execution of the transaction, either because an additional requirement or demand (e.g., the identification of the beneficiary), or because the payment service provider of the payer or the beneficiary had taken advantage of the error for their own benefit, or because, once the existence of the error had been communicated without delay, one or the other had not taken the measures required by the diligence of an expert trader to allow retroaction or, where appropriate, to minimize the damage.”

            Regulation (EU) 2024/886: a paradigm shift

            And in this scenario fraught with doubts, Regulation (EU) 2024/886 bursts onto the scene, representing a 180-degree turn and a paradigm shift: the new European Regulation, approved in April 2024 and coming into force on October 9, 2025, establishes a clear obligation for banks: they must verify that the name of the beneficiary provided by the payer matches the IBAN holder before executing an immediate transfer in euros.

            The new features of this regulation are

            • mandatory application to all instant transfers within the SEPA area,
            • the new name matching system: if there is a discrepancy between the name and the IBAN, the bank must alert the customer before executing the transaction, and
            • increased liability for financial institutions in the event of fraud or error due to lack of verification.

            In short, the aim is to reduce the risk of fraud, protect consumers, and increase confidence in digital payments.

            This means that Law 19/2018, which regulates payment services in Spain and does not require verification of the beneficiary’s identity, is now outdated, underscoring the need for a national legislative review to harmonize the legal framework with European requirements.

            In conclusion, the obligation to verify the beneficiary of transfers represents a significant step forward in consumer protection and the fight against financial fraud. Regulation (EU) 2024/886 marks a turning point in banking operations, imposing an active responsibility on institutions to ensure the authenticity of transfers.

            In any case, the question remains open regarding the solution to MITM frauds executed before October 9, 2025, and the responsibility of the banking institution. For the time being, the aforementioned Supreme Court ruling of March 27 closes the door to claims against banks, but it cannot be ruled out that the entry into force of Regulation 2024/886 and the paradigm shift will lead to a rethinking of the Supreme Court’s position in line with the quasi-objective liability that lower courts have been maintaining. We will have to wait and see, but such a change would be a great success for bank users who have suffered from this MITM fraud and all other types of cyber fraud.

            It is quite common for business relationships with agents or distributors to last for years without any signed documents. And be careful, because we know that a contract can exist even verbally.

            The absence of a written contract will add difficulties in the event of a possible claim, so what you do between the decision to terminate, and the moment of the claim is very important. Remember: ‘anything you write will be used against you’.

            The decision to terminate a business relationship is a very delicate moment to which, for some reason, solicitors are not invited. Here are some examples (all real) in which companies or employees with the best of intentions wrote to the agent/distributor. All of them were subsequently very damaging to the company:

            Saying ‘We are terminating our business relationship’ when the strategy will be to argue that no such business relationship exists, but rather that there are separate and linked contracts (e.g., supply rather than ongoing distribution contract; very significant compensation consequences).

            ‘You no longer represent our company’, which may be evidence that you did so before.

            ‘As of day X, you may no longer act on behalf of our company,’ which would prove that you were previously able to act on its behalf.

            ‘You may not attend the X trade fair on our behalf.’ A way of confirming that the agent/distributor’s responsibilities included participating in trade fairs and probably accrediting the customers obtained.

            ‘The sales you promoted have been significantly reduced in year N.’ When there is no written contract or other form of documentation, imputing a breach of an obligation that is not clear can be counterproductive.

            Saying ‘You are not actively promoting our products’ and then adding: ‘We urge you to stop promoting the sale of our products’.

            ‘You are no longer our exclusive representative’, which proves a type of relationship (representation/agent) and a tacit or express agreement (‘exclusivity’).

            ‘We have appointed another representative in your area’, which shows that the agent/distributor had an assigned area and was “representing”.

            ‘From this moment on, orders will be handled by X’, which also confirms a type of relationship.

             

            In summary: from the moment the company considers terminating a commercial relationship, especially when it is not in writing and before sending any letter, it is advisable to think carefully about the strategy in case of a possible claim. This is the best time to seek advice and avoid surprises. Any communication that is not in line with this strategy designed from the outset can only lead to confusion and problems.

            In Spain, companies can be incorporated by legal entities or persons of any nationality, residing in Spain or abroad.

            Incorporation by a natural person

            The foreign citizen who intends to incorporate a Spanish company, and is not a resident in Spain, must obtain a Foreigner Identification Number/ Tax Identification Number (NIE/NIF) prior to the incorporation of the company before a Notary Public.

            To obtain a NIE/NIF, he/she must, alternatively: (i) appear before the Spanish Consulate in his/her country of residence, or (ii) apply for it before the Immigration Office/Police Station in Spain; in both cases personally or through a representative. The representation will be accredited with sufficient power of attorney, in which it is expressly stated that the representative is authorised to present the application to obtain the NIE.

            Once the NIE has been obtained, it must be communicated to the Tax Agency by presenting a Form 030, a photocopy of the passport and a photocopy of the NIE. Once the NIE has been communicated to the Tax Agency, the foreign citizen can now appear before a Notary Public to notarise the Deed of Incorporation of the company, presenting the following documents:

            • The bylaws, with the minimum content required by Spanish law (Model Bylaws of a Public Limited Company, Model Bylaws of a Private Limited Company);
            • The negative certificate of denomination issued by the Central Mercantile Registry (reservation of name for the company);
            • In the case of monetary contributions, the deposit slip issued by the bank accrediting the disbursement of the initial contributions (or, if applicable, the corresponding amount in cash) is required. In the case of Limited Companies, the notary must provide bank proof of payment of a minimum of 3,000 euros, payment to be made directly by the individual who will be the owner of the company’s shares.
            • If the foreign citizen planning to incorporate the company does not appear personally before the Notary, they may do so through a representative. The original power of attorney granted to the representative, duly legalized (by apostille or document legalization) and accompanied by sworn translation, must be provided.
            • The original identification documents (national identity card or passport and NIE/TIE) of the persons who constitute the new company;
            • The foreign investment declaration duly completed. Although merely informative, this mandatory document must be filed with the Foreign Investment Registry of the Ministry of Economy and Competitiveness within one month of the New Company’s incorporation. The notary can take care of it if requested (Form D-1A).

            Incorporation by a legal entity

            The foreign company that plans to incorporate a Spanish company must obtain a Tax Identification Number before the incorporation, in front of a Notary Public, by submitting an application form (EX15).

            This application for a NIF must be signed by a legal representative of the company who, in the event of not being a legal resident in Spain (Spanish or foreigner with a residence permit), must obtain a NIE as a non-resident beforehand.

            If a foreign company grants power of attorney to a legal resident in Spain to obtain the company’s NIF, the Tax Agency requires that the grantor of the power of attorney also have an NIE as a non-resident. If he does not have a NIE, the Tax Administration can grant him a provisional NIE by means of form 030, together with a photocopy of his passport.

            Once empowered, this legal representative of the foreign company must sign the application for the census form (form 036) and this application must be presented, in person, at the Tax Agency office, enclosing:

            • Census declaration (Form 036) signed by the person empowered by the foreign company requesting the NIF, and
            • Power of attorney granted by the authorized representative of the non-resident entity, duly notarized and legalized (see “Legalization and translation of documents”), in which a legal resident person is appointed as representative of the non-resident entity for the purpose of obtaining the NIF.

            Once the foreign company is registered with the Tax Agency, it can proceed with the incorporation.

            Introduction: A Paradigm Shift in Conflict Resolution

            The approval of Organic Law 1/2025, of January 2, on measures for the efficiency of the Public Justice Service, marks a turning point in the Spanish judicial system. This legislation is not limited to introducing procedural changes, but reflects a profound transformation in the very concept of justice. The legislator has made a firm commitment to promoting alternatives to the judicial resolution of disputes, making prior negotiation a central element of the system.

            The saturation of the courts, the costs associated with judicial proceedings, and the search for more satisfactory solutions for the parties have prompted this reform, which places the so-called “appropriate means of non-jurisdictional dispute resolution” as the cornerstone of a new justice model oriented towards dialogue and agreement.

            The philosophy behind alternative means of dispute resolution

            Beyond the decongestion of the courts, this reform responds to a philosophy that understands that not all conflicts necessarily require a judicial response. Alternative means of dispute resolution are based on the premise that many conflicts can find more satisfactory and lasting solutions, adapted to the needs and interests of the parties, when they actively participate in their construction.

            Organic Law 1/2025 defines these means as “any type of negotiating activity, recognized in this or other laws, state or autonomous, to which the parties to a conflict resort in good faith with the aim of finding an extrajudicial solution to it, either by themselves or with the intervention of a neutral third party”. This broad and flexible definition is intended to cover various forms of negotiation whose common denominator is the protagonism of the parties in the resolution of their own disputes.

            A range of possibilities: Diversity of mechanisms for diversity of conflicts

            One of the most noteworthy aspects of the new regulation is that it does not rely on a single model of alternative dispute resolution but recognizes the diversity of situations and the need to offer different tools adapted to each particular case.

            Mediation, already consolidated in our legal system through Law 5/2012, maintains its relevance as the preferred method, but other modalities such as conciliation in its various variants (notarial, registry, before a lawyer of the Administration of Justice or judicial), the opinion of independent experts, confidential binding offers, or the novel process of collaborative law are added to it.

            This plurality of mechanisms reflects the complexity of contemporary legal relationships and the need to provide tailored responses to each type of conflict. Resolving a neighborhood dispute is not the same as resolving a complex business dispute, and the legislator has been aware that “one size fits all” would not be effective for the diversity of situations that may arise.

            The controversial commitment to enforceability: The requirement of procedural validity

            Undoubtedly, the most innovative -and probably the most controversial- aspect of the new regulation is the configuration of these means as a mandatory prerequisite for resorting to judicial proceedings in certain areas. This decision represents a qualitative leap with respect to the previous regulation, which mainly favored the voluntary nature of these mechanisms.

            From the entry into force of Organic Law 1/2025, April 3, 2025, the claim in the civil jurisdictional order will not be admitted if it is not justified that the resolution of the conflict has been previously attempted by any of the recognized alternative ways. Not only that, but also the identity between the object of the previous negotiation and the object of the litigation to be initiated must be established.

            This mandatory nature has been the subject of intense debate. Its advocates argue that it is necessary to promote cultural change in a traditionally litigious society, while its detractors warn of the risk of turning these mechanisms into mere formalities that distort their true purpose.

            The truth is that the legislator has tried to find a balance, excluding from this obligation certain particularly sensitive matters or those which, by their nature, require an immediate judicial response. Thus, issues such as the judicial protection of fundamental rights, measures for the protection of minors, or the request for precautionary measures, among others, are exempted from the requirement of prior negotiation.

            The guiding principles: Autonomy and confidentiality as pillars of the system

            The effectiveness of alternative dispute resolution rests mainly on two fundamental principles: the autonomy of the parties and the confidentiality of the process.

            The principle of private autonomy recognizes that the parties themselves best know their interests and needs and are, therefore, in the best position to find solutions adapted to their situation. The law establishes that the parties are free to settle, if they respect the law, good faith, and public policy. This freedom is essential for the solutions reached to be truly satisfactory and lasting.

            The principle of confidentiality is crucial to creating a climate of trust that allows the parties to express themselves freely during the negotiation process. The law establishes that the information and documentation disclosed during the negotiation must be kept confidential, with very specific exceptions, such as express waivers by the parties, court orders in criminal matters, or reasons of public order.

            This duty of confidentiality extends to all participants in the process: the parties, their lawyers, and, where appropriate, the neutral third party involved. The aim is to ensure that what is said or proposed during the negotiation cannot be used later in a possible judicial process, thus promoting a sincere and constructive dialogue.

            The Negotiation Process: Relevant Procedural Aspects

            The regulation of the procedural aspects of the different means of dispute resolution also reflects the legislator’s desire to combine the necessary flexibility with the minimum guarantees required.

            As regards standing, the initiative to resort to these mechanisms may come from either party, from both by mutual agreement, or even from a judicial referral. This recognizes both the parties’ autonomy and the possibility that the judicial system itself may encourage the use of these alternative channels.

            Regarding the involvement of professionals, the law generally prefers a non-mandatory approach to legal assistance, except in specific situations like the preparation of binding offers (with exceptions for smaller amounts). This flexibility aims to enhance access to these mechanisms; however, the complexity of many legal disputes often makes it wise to seek professional guidance.

            A particularly relevant aspect is the effect that the request for these mechanisms has on the statute of limitations and expiration periods. The law establishes that such a request interrupts the statute of limitations or suspends the expiration of actions from the date of communication to the other party, thus avoiding the attempt of an amicable solution that may prejudice the rights of the party that promotes it.

            In terms of form, the preferred method is face-to-face, although the use of telematic means is permitted by agreement of the parties or in the case of claims for amounts of less than 600 euros. This flexibility is particularly appropriate in a context of increasing digitalization of legal relations.

            Specific Modalities: Diversity of mechanisms for diversity of conflicts

            Among the different modalities recognized by the law, it is worthwhile to focus on some that present particularly novel or relevant characteristics.

            Private conciliation involves the intervention of a person with technical or legal expertise related to the dispute’s subject matter. The law requires this person to be registered in a recognized professional association or in a register of mediators and to act impartially and confidentially. This mechanism takes advantage of the specialized knowledge of certain professionals to facilitate agreement in technically complex matters.

            The confidential binding offer is a particularly interesting mechanism for certain types of disputes. One of the parties makes an offer that is binding on it in the event of acceptance by the other party. The law requires that the identity of the offeror, the actual receipt by the other party, and the detailed content of the offer be recorded. This instrument can be particularly useful in financial claims, where the main obstacle to settlement is often the amount.

            The independent expert opinion consists of commissioning an opinion from an expert in the subject matter of the dispute. Unlike other mechanisms, this opinion is not binding, but may serve as a basis for agreement if the parties accept it, or at least to clarify the technical aspects of the dispute. Following the issuance of the opinion, the parties may accept it as an agreement, propose improvements or reject it, in which case the procedural requirement is deemed to be fulfilled.

            Finally, the collaborative law process represents perhaps the most innovative aspect of the new regulation. It is a structured negotiation in which the parties, assisted by their respective lawyers, work together to reach a satisfactory solution, being able to integrate other professionals (psychologists, economists, etc.) when the complexity of the case requires it. At the end, minutes are drawn up with the participants, the sessions held and the agreements reached.

            The challenge of implementation: From theory to practice

            The real effectiveness of this new system will depend largely on how it is implemented in practice. It is not enough to make it compulsory to attempt out-of-court settlement; this attempt must be genuine and not become a mere formality.

            In this regard, the law requires that the negotiation attempt be “real and credible; it cannot be fictitious.” To this end, it establishes documentation requirements that vary depending on whether or not a neutral third party is involved but always include a responsible statement that the parties have intervened in good faith in the process.

            Likewise, the law regulates in detail when the negotiation process is understood to be concluded, whether it concludes with or without an agreement. In the event of an agreement, it must be formalized by identifying the parties and, if applicable, their lawyers and the neutral third party, indicating the place and date, as well as the obligations assumed by each party.

            The possibility of converting the agreement into a public deed to convert it into an enforceable title reinforces its value and facilitates its compliance, avoiding the possibility of non-compliance with the agreement, forcing the initiation of a declaratory judicial proceeding.

            A horizon to be explored: Perspectives and challenges

            Organic Law 1/2025 represents a turning point in the conception of justice in Spain, bringing us closer to models already consolidated in other countries with a long tradition in alternative means of conflict resolution. The United States, Canada and the Nordic countries have been using these mechanisms for decades, with generally positive results in terms of user satisfaction and decongestion of the courts.

            However, each legal system has its particularities, and the success of these mechanisms depends not only on their legal regulation but also on cultural, sociological, and organizational factors. Spanish society’s traditional litigiousness, the poor negotiating culture in certain areas, and the lack of specific training of many professionals are challenges that must be faced.

            The commitment to obligatory nature as an initial impulse may be understandable in a context of paradigm change, but the real success of these mechanisms will come from their capacity to generate satisfactory solutions that will progressively make them the preferred option on their own merits, beyond their obligatory nature.

            Conclusion: Between Hope and Caution

            The new regulation of the appropriate means of non-jurisdictional dispute resolution is in line with a clear international trend towards the promotion of alternatives to judicial dispute resolution. This trend responds both to practical needs – decongesting the courts, reducing costs – and to a philosophy that values the protagonism of the parties in the management of their own conflicts.

            In this sense, Spanish legislation joins a global movement that has shown positive results in many jurisdictions. However, only time will tell whether the legislative technique used, especially the commitment to mandatory nature as a procedural requirement, is the most appropriate to achieve the true purpose of encouraging agreement in order to avoid litigation.

            The success of this reform will depend not only on its regulatory design, but also on factors such as adequate training of the professionals involved, public awareness of the advantages of these alternative routes, and the system’s capacity to evaluate and adapt according to the results obtained.

            In short, we are facing an ambitious and necessary reform, which opens up a hopeful horizon but which will have to overcome important challenges in order to consolidate itself as a true paradigm shift in the administration of justice in Spain. The true criterion of success will not be the number of negotiation attempts made, but the quality of the agreements reached and the satisfaction of citizens with a more participatory, efficient justice system adapted to their real needs.

            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.

            Generative artificial intelligence (generative AI) is a variant of artificial intelligence aimed at creating models capable of generating new and original content. These models are trained to learn patterns and features from data sets, and can then generate similar or even completely new content based on those learned patterns.

            A specific type of generative model is the generative neural network (GAN). GANs consist of two neural networks, one generative and one discriminative, working together. The generative network creates new content, while the discriminative network evaluates the authenticity of that content. The generative model can produce increasingly realistic results as these networks compete and improve.

            Generative AI has applications in various areas, such as art creation, creative text generation, speech synthesis, and so on. It is also used in fields such as image enhancement and machine translation. This approach has advanced significantly in recent years and continues to be an active area of research in artificial intelligence.

            Generative artificial intelligence applied to the legal sector involves using generative models to assist in various tasks and processes related to legal practice.

            Positive aspects of generative AI applied to the legal sector

            The integration of generative artificial intelligence in the legal field has emerged as a transformative catalyst, providing a number of significant benefits that positively impact the efficiency, accuracy, and accessibility of legal services. Throughout this evolution, several aspects highlight the substantial contribution of artificial intelligence to legal practice.

            Some of these benefits are highlighted below:

            Legal Document Drafting

            Generative AI can be used to draft legal documents, contracts and other legal texts. It can generate content based on patterns learned from large sets of legal data, facilitating the creation of standard documents and reducing the workload for legal professionals, also ensuring consistency and accuracy in legal drafting, reducing risks associated with possible human errors.

            Analysis of large volumes of data

            The ability to process information at a speed and scale that surpasses human abilities enables the identification of patterns, trends and precedents with greater speed and accuracy. This advanced analysis helps strengthen legal arguments, improve strategic decision-making and provide clients with stronger legal representation.

            Improved legal research

            Generative artificial intelligence systems can perform faster and more accurate searches of legal databases, law libraries and case law. This streamlines the legal research process, providing professionals with access to relevant information more efficiently.

            Legal Argument Generation

            Generative IA can help generate sound legal arguments. By understanding case law and legal principles, it can help lawyers build better arguments and develop strategies for specific cases.

            Automated Legal Advice

            Automated legal advice systems can be developed that use generative AI to answer common legal questions and provide basic guidance. This could be useful for simpler legal queries and to improve access to legal information.

            Personalized legal advice

            Artificial intelligence can analyze case-specific data and provide personalized legal advice. This helps legal professionals make more informed and strategic decisions by considering situation-specific factors.

            Legal Scenario Simulation

            Generative AI can simulate legal scenarios to help lawyers evaluate possible outcomes and risks in particular cases. This could be useful in strategic decision-making and legal planning.

            Automation of repetitive tasks

            The ability of artificial intelligence systems to take on the workload related to standard document review and basic information management allows legal professionals to focus on more complex and strategic issues. This automation not only saves time but also decreases the likelihood of human error, thus strengthening the overall quality of legal work.

            Optimization of internal processes

            Artificial intelligence can significantly improve efficiency in case management, meeting scheduling, and other day-to-day operations in law firms. This optimization not only streamlines internal practices but also enables more efficient resource allocation and more effective workload management.

            In short, the application of generative artificial intelligence in the legal sector transcends the mere automation of tasks, encompassing fundamental aspects that improve the quality and efficiency of legal services. From the automation of routine tasks to advanced data analysis and document generation, artificial intelligence is a powerful ally that drives positive developments in legal practice. This advancement not only improves the internal efficiency of law firms, but also strengthens the ability of legal professionals to provide accurate and strategic advice in an ever-changing legal environment.

            While generative AI offers many possibilities, its implementation in the legal sector must be approached cautiously to ensure accuracy, ethics, and compliance with applicable laws and regulations. Human intervention and legal oversight remain essential to ensure quality and accountability in using these technologies.

            Negative aspects of the application of generative AI to the legal sector

            While promising, the integration of generative artificial intelligence in the legal sector poses a number of challenges and negative aspects that require attention and careful consideration. Despite significant advances in automation and process improvement, addressing the following adverse aspects is crucial to ensure an ethical and effective implementation.

            Lack of human discernment

            Although artificial intelligence systems can analyze data at impressive speed, they lack human understanding and sensitivity. Interpreting legal nuances, understanding emotional contexts, and making decisions based on ethics are skills intrinsic to legal professionals. Over-reliance on technology in interpreting complex situations could result in inadequate or insensitive assessments.

            Risk of algorithmic bias

            Algorithms used in generative artificial intelligence are trained on historical data, and if that data contains cultural, ethnic, or gender biases, the results generated may reflect and perpetuate those biases. This raises ethical and legal concerns, as automated decisions could be inherently discriminatory, affecting fairness and justice in the legal system.

            Data security and privacy

            The implementation of artificial intelligence in the legal field involves handling highly confidential information. Systems’ vulnerability to cyber attacks could expose sensitive data, compromising the confidentiality and integrity of the legal system. Good protection against cyber threats is essential to maintaining confidence in these technologies.

            Job displacement

            As artificial intelligence takes over routine and repetitive tasks, there is a risk that certain jobs in the legal sector will be affected. This raises questions about role restructuring and the need for legal professionals to acquire new skills to adapt to a changing work environment. The ethics of this displacement and measures to mitigate its impacts must be carefully addressed.

            Ethical complexity in decision making

            Generative artificial intelligence algorithms often operate opaquely, meaning that the logic behind their decisions can be difficult to understand or explain. This raises ethical questions about accountability and transparency in legal decision-making, especially in critical cases where a clear explanation of decisions is critical.

            Costs associated with implementation

            From initial development to ongoing training and system maintenance, law firms, especially smaller ones, can face significant financial challenges. This raises the issue of equity in access to these technologies and the need to seek solutions that do not perpetuate inequities in the legal system.

            Cultural resistance and adaptation

            Cultural resistance and adaptation are factors that should not be overlooked. The introduction of generative artificial intelligence may encounter resistance among legal professionals who may be reluctant to rely on emerging technologies. Organizational culture and acceptance of these tools may require time and effort for successful implementation. Training and effective communication are essential to overcome these barriers.

            In conclusion, the application of generative artificial intelligence in the legal sector, while offering significant benefits, is not without its challenges. Addressing the lack of human discernment, mitigating the risk of algorithmic bias, ensuring data security and privacy, managing labor displacement, addressing ethical complexity in decision making, and managing associated costs are imperative for ethical and effective implementation. Careful thought and appropriate regulation are essential to harness the benefits of artificial intelligence without compromising fundamental principles of fairness and justice in the legal system.

            The Commercial Court No. 17 of Madrid has ruled in the SuperLiga case following the guidelines set by the CJEU in its decision of December 21 last year.

            The lawsuit was filed by ESCL, an entity formed by Real Madrid and other soccer clubs to promote the SuperLiga, most of which abandoned the project due to pressure from fans and their governments against FIFA and UEFA, with RFEF and La Liga voluntarily joining the defendants.

            As usually happens with elections, but not with sentences, everyone, plaintiffs and defendants, has shown their satisfaction with this ruling, which is not yet final, as it can be appealed before the Provincial Court of Madrid.

            In brief, the proceedings involved whether the FIFA/UEFA regulations on the organization and authorization of soccer competitions and the management of the rights deriving from such competitions were in accordance with Community competition law, articles 101 and 102 of the TFEU.

            The CJEU judgment of last December had already ruled that the regulatory rules of FIFA and UEFA relating to prior authorization and participation, which give these entities the power to prevent any competing company from accessing the market, constitute an abuse of a dominant position and infringe the provisions of Articles 101 and 102 TFEU, mainly because they are not accompanied by certain limits and controls guaranteeing transparency and objectivity in the decision not to authorize such international competitions, which allow the risk of abuse of a dominant position to be excluded.

            Likewise, the Court of Justice, using the same arguments and about the exploitation rights deriving from sporting competitions, states that the FIFA and UEFA rules are contrary to the provisions of Articles 101 and 102 TFEU, since they attribute to themselves exclusive responsibility for the marketing of the rights in question.

            Following the guidelines set by the CJEU judgment, the judgment of Madrid Commercial Court No. 17 partially upheld the lawsuit filed by ESLC against UEFA and FIFA. It declared that both organizations have abused their dominant position and are preventing free competition in the market by granting themselves the discretionary power to prohibit participation in alternative competitions and impose unjustified and disproportionate restrictions, conduct that infringes Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

            The ruling condemns FIFA and UEFA to cease the anticompetitive conduct sanctioned and prohibits them from repeating them in the future. It also condemns them to immediately remove all the effects of the anticompetitive actions that occurred before or during the duration of the lawsuit, which began on April 18, 2021, when ESLC announced the launch of the SupeLiga.

            Finally, the judgment states that the content of the declarations issued by FIFA, UEFA and other entities (including the federations and leagues of England, Italy and Spain, some of whose clubs were part of the project) on April 18, 2021 (referred to in the lawsuit as the ‘Declaration’) in relation to the pan-European international competition project, also infringes Articles 101 and 102 TFEU.

            It should be noted that the judgment expressly states that “inasmuch as the SuperLiga in the terms initially set forth in the lawsuit, i.e. in accordance with the initial project has been abandoned and discarded by the promoters themselves, the motions in relation thereto must likewise lapse; it is not possible to impose a prohibition or restriction in the abstract, i.e. to impose a prohibition in the future of any other project or modification of the one already presented”.

            Based on this argument, the Judgment rejects the requests included in section f) of the lawsuit which, in summary, requested that FIFA and UEFA be ordered to refrain from any conduct, measure, or action or issue any statement that prevents or hinders in any way the preparation of the SuperLiga; and the commercial judge concludes by stating in this regard that the purpose of these proceedings is not “the authorization of any competition, but to lay the foundations to channel a system of free competition for the organization of soccer competitions”.

            Thereafter, everyone is happy with the result; La Liga issued a statement stressing that the ruling does not endorse a project which, moreover, according to the same ruling, has been abandoned by its promoters. UEFA says that it is pleased to note that the judge has given a good and valid system of prior authorization for third-party competitions to be approved in accordance with UEFA’s authorization rules and has recognized the undoubted benefits of these rules for the soccer sporting system, concluding that “the judgment does not give third parties the right to develop competitions without authorization and does not refer to any future project or to any modified version of an existing project”.

            The plaintiffs, too, are happy and content to proclaim that UEFA’s statutes and the aggressive measures taken to protect its monopoly have stifled innovation for decades. Clubs should not have to fear threats of sanctions simply for having ideas and having conversations. The era of monopoly is definitely over.

            Rarely does one find that a judgment leaves all the litigants so happy and content, but that seems to be the case here. Or at least that is what all of them have been interested in communicating, when the harsh reality is, on the one hand, that the SuperLiga project as it was structured when the lawsuit started and FIFA/UEFA reacted furiously, is dead and buried, and on the other hand, that the happy world in which FIFA and UEFA regulated soccer and competitions as a private preserve, considered themselves immune and alien to ordinary justice and shared the money generated without being accountable to the Courts of Justice and threatened to expel or expel the rebellious spirits, has come to an end.

            Commercial agents have specific regulations with rights and obligations that are “mandatory”: those who sign an agency contract cannot derogate from them. Answering whether an influencer can be an agent is essential because, if he or she is an agent, the agent regulations will apply to him or her.

            Let’s take it one step at a time. The influencer we will talk about is the person who, with their actions and comments (blogs, social media accounts, videos, events, or a bit of everything), talks to their followers about the advantages of certain products or services identified with a certain third-party brand. In exchange for this, the influencer is paid.[1]

            A commercial agent is someone who promotes the contracting of others’ products or services, does so in a stable way, and gets paid in return. He or she can also conclude the contract, but this is not essential.

            The law imposes certain obligations and guarantees rights to those signing an agency contract. If the influencer is considered an “agent”, he or she should also have them. And there are several of them: for example, the duration, the notice to be given to terminate the contract, the obligations of the parties… And the most relevant, the right of the agent to receive compensation at the end of the relationship for the clientele that has been generated. If an influencer is an agent, he would also have this right.

            How can an influencer be assessed as an agent? For that we must analyse two things: (a) the contract (and be careful because there is a contract, even if it is not written) and (b) how the parties have behaved.

            The elements that, in my opinion, are most relevant to conclude that an influencer is an agent would be the following:

             

            a) the influencer promotes the contracting of services or the purchase of products and does so independently.

            The contract will indicate what the influencer must do. It will be clearer to consider him as an agent if his comments encourage contracting: for example, if they include a link to the manufacturer’s website, if he offers a discount code, if he allows orders to be placed with him. And if he does so as an independent “professional”, and not as an employee (with a timetable, means, instructions).

            It may be more difficult to consider him as an agent if he limits himself to talking about the benefits of the product or service, appearing in advertising as a brand image, and using a certain product, and speaking well of it. The important thing, in my opinion, is to examine whether the influencer’s activity is aimed at getting people to buy the product he or she is talking about, or whether what he or she is doing is more generic persuasion (appearing in advertising, lending his or her image to a product, carrying out demonstrations of its use), or even whether he or she is only seeking to promote himself or herself as a vehicle for general information (for example, influencers who make comparisons of products without trying to get people to buy one or the other). In the first case (trying to get people to buy the product) it would be easier to consider it as an “agent”, and less so in the other examples.

             

            b) this “promotion” is done in a continuous or stable manner.

            Be careful because this continuity or stability does not mean that the contract has to be of indefinite duration. Rather, it is the opposite of a sporadic relationship. A one-year contract may be sufficient, while several unconnected interventions, even if they last longer, may not be sufficient.

            In this case, influencers who make occasional comments, who intervene with isolated actions, who limit themselves to making comparisons without promoting the purchase of one or the other, and even if all this leads to sales, even if their comments are frequent and even if they can have a great influence on the behavior of their followers, would be excluded as agents.

             

            c) they receive remuneration for their activity.

            An influencer who is remunerated based on sales (e.g., by promoting a discount code, a specific link, or referring to your website for orders) can more easily be considered as an agent. But also, if he or she only receives a fixed amount for their promotion. On the other hand, influencers who do not receive any remuneration from the brand (e.g. someone who talks about the benefits of a product in comparison with others, but without linking it to its promotion) would be excluded.

             

            Conclusion

            The borderline between what qualifies an influencer as an agent and what does not can be very thin, especially because contracts are often not unambiguous and sometimes their services are multiple. The most important thing is to carefully analyse the contract and the parties’ behaviour.

            An influencer could be considered a commercial agent to the extent that his or her activity promotes the contracting of the product (not simply if he or she carries out informative or image work), that it is done on a stable basis (and not merely anecdotal or sporadic) and in exchange for remuneration.

            To assess the specific situation, it is essential to analyse the contract (if it is written, this is easier) and the parties’ behaviour.

            In short, to draw up a contract with an influencer or, if it has already been signed, but you want to conclude it, you will have to pay attention to these elements. As an influencer you may have a strong interest in being considered an agent at the end of the contract and thus be entitled to compensation, while as employer you will prefer the opposite.

            FINAL NOTE. In Spain and at the date of this comment (9 June 2024) I am not aware of any judgement dealing with this issue. My proposal is based on my experience of more than 30 years advising and litigating on agency contracts. On the other hand, and as far as I know, there is at least one judgment in Rome (Italy) dealing with the matter: Tribunale di Roma; Sezione Lavoro 4º, St. 2615 of 4 March 2024; R. G. n. 38445/2022.

            Javier Gaspar

            Practice areas

            • Distribution
            • Arbitration
            • Franchising
            • Litigation
            • Sport
            Contact Javier

            Contact Javier





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              Spain – Can an influencer be considered a “commercial agent”?

              18 June 2024

              • Spain
              • Agency
              • Distribution

              The increase in so-called cybercrime in recent years is so significant that it requires strong legislative and judicial responses. Losses from online fraud in Europe exceed $100 billion, according to Nasdaq Ventures, of which $5 billion correspond to Spain.

              In Spain, 192,375 cases of computer fraud were reported in 2019, but by 2023 this figure had risen to 427,448. According to the latest official data available, computer fraud accounts for 90.4% of all cybercrimes, with growth of 378% between 2016 and 2023.

              There are many different types of computer fraud, and they are named in English (after all, the lingua franca of our time), including, among other ingenious methods used by skilled fraudsters, those with curious and amusing names (except for those who suffer from them) such as phishing, pharming, juice jacking, tabnabbing, bluesnarfing, catfishing, spoofing, vishing, smishing, whaling, carding, and the one we are interested in today, man in the middle (MITM).

              Man in the Middle scam: how it works

              This MITM fraud involves intercepting communications between two devices connected to a network, allowing the attacker to alter and divert messages exchanged between users. The fraudster intercepts a communication in which one user requests a payment from another and then modifies the IBAN of the bank account to which the transfer should be made in order to obtain the money. The process generally unfolds as follows:

              • Without the company noticing, an attacker intercepts and manipulates an email, changing the IBAN number of the account to which the payment should be made.
              • The cybercriminal impersonates the supplier, sending the message from an email address that is almost identical to the original, but with a slight alteration that is almost imperceptible.
              • The receiving company, trusting the authenticity of the message, makes the transfer to the fraudulent account.

               

              This results in a transfer of assets to the detriment of the person ordering the transfer and in favor of the cyber thief, so that when the person ordering the transfer notices the error, their first reaction is to try to contact the receiving bank in the hope that the funds can be blocked in time. However, in most cases, the cybercriminal has been quicker: the money has already been transferred to another account or withdrawn, leaving little room for maneuvering, except for the initiation of legal proceedings, which we will discuss below.

              The immediate question is what responsibility the bank that has received the transfer order from the deceived user and credits the cyber fraudster’s account with the amount in question has in cases where the payer identifies not only the (fraudulent) IBAN but also the name of the beneficiary of the payment order, which obviously does not match the name of the holder of the bank account receiving the funds.

              The common-sense answer would be that the bank receiving the transfer should confirm that the holder of the account to which the funds are credited and the individual or entity identified as the beneficiary in the transfer order match; if this is not the case, it should suspend the payment and request clarification from the payer. However, this is not the case in light of EU legislation and its transposition into Spanish law, as we will see below.

              Until October 9, the European banking system operated under the premise that the validity of a transfer was based exclusively on the correctness of the IBAN. In other words, if the account number was correct, the transaction was considered valid, even if the beneficiary’s name did not match. This practice has led to numerous cases of fraud, unintentional errors, and loss of funds, especially in instant transfers, where speed can compromise security.

              The most reasonable option for the defrauded payer to recover their money is to sue the bank receiving the payment order (with which they have no contractual relationship) for non-contractual liability under Article 1124 of the Civil Code; in fact, criminal proceedings against the account holder, who is usually referred to in slang as a “mule,” do not usually have a satisfactory outcome, both because the bird usually flies away and because of its lack of solvency.

              The case law of the Provincial Courts has been divided between rulings that strictly and faithfully applied Article 59 of Royal Decree-Law 19/2018 of November 23, on payment services and other urgent financial measures, dismissing the claims of those defrauded, and others in which arguments were sought under the premise of lack of diligence to condemn the bank to compensate the payer.

              This has led to the establishment of quasi-objective liability for banks in relation to digital fraud, imposing a higher standard of diligence on them and transferring the risk inherent in online banking to them, except in cases of willful misconduct or gross negligence on the part of the customer. This line of reasoning, which has been developed from lower court rulings (AP Madrid 178/2015; AP Alicante 107/2018; AP Valencia 212/2021) to the Supreme Court itself (STS 571/2025, among others), is in line with the idea that it is up to the bank to prove that its systems were secure, up to date, and sufficient to prevent the crime from being committed.

              In this context, the concept of bonus argentarius takes on renewed relevance. This is a principle that was included in Law 57/68 to protect home buyers in the real estate sector, but the Supreme Court has ruled on several occasions that it can also be applied to other financial investments. This means that, in the event of losses due to negligence on the part of the financial institution, the customer can file a claim under Law 57/68 and hold the institution liable.

              The bonus argentarius is based on the presumption of fault on the part of the financial institution, which means that even if the customer has no concrete evidence of negligence, it is assumed due to the duty of care that the institution must exercise in the management of investments.

              Based on this principle, the diligence required of financial professionals is not that of the average trader or pater familias, but that of a qualified expert who assumes the obligation to protect the funds entrusted to them by implementing “necessary and renewable” security mechanisms. This implies not only maintaining basic technical measures for enhanced authentication, but also proactively adopting internationally recognized anti-fraud solutions, such as name-IBAN verification (Confirmation of Payee or IBAN-Naam Check), which have proven effective in comparable jurisdictions.

              In line with that doctrine and case law, it can be said that the omission of beneficiary verification measures today constitutes a breach of the contractual duty of diligence and good faith (Articles 1104 and 1258 of the Civil Code), giving rise to civil liability for the damage caused, such that MITM fraud cannot be considered a residual risk attributable to the customer, but rather a systemic security failure attributable to the financial institution, as the designer and custodian of the electronic payment channel.

              In this state of affairs, the Supreme Court, in its recent ruling of March 27, 2025, opted for the alternative of strict application of Article 59, arguing that “if the payment service user provides additional information to that required (specification of the information or unique identifier that the payment service user must provide for the correct initiation or execution of a payment order), the payment service provider shall only be liable for the execution of payment transactions in accordance with the unique identifier provided by the payment service user… and that the liability of the payment service provider, both at Community and national level, is such that it fulfills its obligation by executing the payment transaction in accordance with the unique identifier, without the addition of further information implying a higher standard of diligence

              It is true that, in conclusion, the Supreme Court offered a glimmer of hope to defrauded users when it stated that “the interpretation set out above does not exempt the payment service provider from liability when circumstances, unrelated to the provision of additional data, are found to have contributed to the defective execution of the transaction, either because an additional requirement or demand (e.g., the identification of the beneficiary), or because the payment service provider of the payer or the beneficiary had taken advantage of the error for their own benefit, or because, once the existence of the error had been communicated without delay, one or the other had not taken the measures required by the diligence of an expert trader to allow retroaction or, where appropriate, to minimize the damage.”

              Regulation (EU) 2024/886: a paradigm shift

              And in this scenario fraught with doubts, Regulation (EU) 2024/886 bursts onto the scene, representing a 180-degree turn and a paradigm shift: the new European Regulation, approved in April 2024 and coming into force on October 9, 2025, establishes a clear obligation for banks: they must verify that the name of the beneficiary provided by the payer matches the IBAN holder before executing an immediate transfer in euros.

              The new features of this regulation are

              • mandatory application to all instant transfers within the SEPA area,
              • the new name matching system: if there is a discrepancy between the name and the IBAN, the bank must alert the customer before executing the transaction, and
              • increased liability for financial institutions in the event of fraud or error due to lack of verification.

              In short, the aim is to reduce the risk of fraud, protect consumers, and increase confidence in digital payments.

              This means that Law 19/2018, which regulates payment services in Spain and does not require verification of the beneficiary’s identity, is now outdated, underscoring the need for a national legislative review to harmonize the legal framework with European requirements.

              In conclusion, the obligation to verify the beneficiary of transfers represents a significant step forward in consumer protection and the fight against financial fraud. Regulation (EU) 2024/886 marks a turning point in banking operations, imposing an active responsibility on institutions to ensure the authenticity of transfers.

              In any case, the question remains open regarding the solution to MITM frauds executed before October 9, 2025, and the responsibility of the banking institution. For the time being, the aforementioned Supreme Court ruling of March 27 closes the door to claims against banks, but it cannot be ruled out that the entry into force of Regulation 2024/886 and the paradigm shift will lead to a rethinking of the Supreme Court’s position in line with the quasi-objective liability that lower courts have been maintaining. We will have to wait and see, but such a change would be a great success for bank users who have suffered from this MITM fraud and all other types of cyber fraud.

              It is quite common for business relationships with agents or distributors to last for years without any signed documents. And be careful, because we know that a contract can exist even verbally.

              The absence of a written contract will add difficulties in the event of a possible claim, so what you do between the decision to terminate, and the moment of the claim is very important. Remember: ‘anything you write will be used against you’.

              The decision to terminate a business relationship is a very delicate moment to which, for some reason, solicitors are not invited. Here are some examples (all real) in which companies or employees with the best of intentions wrote to the agent/distributor. All of them were subsequently very damaging to the company:

              Saying ‘We are terminating our business relationship’ when the strategy will be to argue that no such business relationship exists, but rather that there are separate and linked contracts (e.g., supply rather than ongoing distribution contract; very significant compensation consequences).

              ‘You no longer represent our company’, which may be evidence that you did so before.

              ‘As of day X, you may no longer act on behalf of our company,’ which would prove that you were previously able to act on its behalf.

              ‘You may not attend the X trade fair on our behalf.’ A way of confirming that the agent/distributor’s responsibilities included participating in trade fairs and probably accrediting the customers obtained.

              ‘The sales you promoted have been significantly reduced in year N.’ When there is no written contract or other form of documentation, imputing a breach of an obligation that is not clear can be counterproductive.

              Saying ‘You are not actively promoting our products’ and then adding: ‘We urge you to stop promoting the sale of our products’.

              ‘You are no longer our exclusive representative’, which proves a type of relationship (representation/agent) and a tacit or express agreement (‘exclusivity’).

              ‘We have appointed another representative in your area’, which shows that the agent/distributor had an assigned area and was “representing”.

              ‘From this moment on, orders will be handled by X’, which also confirms a type of relationship.

               

              In summary: from the moment the company considers terminating a commercial relationship, especially when it is not in writing and before sending any letter, it is advisable to think carefully about the strategy in case of a possible claim. This is the best time to seek advice and avoid surprises. Any communication that is not in line with this strategy designed from the outset can only lead to confusion and problems.

              In Spain, companies can be incorporated by legal entities or persons of any nationality, residing in Spain or abroad.

              Incorporation by a natural person

              The foreign citizen who intends to incorporate a Spanish company, and is not a resident in Spain, must obtain a Foreigner Identification Number/ Tax Identification Number (NIE/NIF) prior to the incorporation of the company before a Notary Public.

              To obtain a NIE/NIF, he/she must, alternatively: (i) appear before the Spanish Consulate in his/her country of residence, or (ii) apply for it before the Immigration Office/Police Station in Spain; in both cases personally or through a representative. The representation will be accredited with sufficient power of attorney, in which it is expressly stated that the representative is authorised to present the application to obtain the NIE.

              Once the NIE has been obtained, it must be communicated to the Tax Agency by presenting a Form 030, a photocopy of the passport and a photocopy of the NIE. Once the NIE has been communicated to the Tax Agency, the foreign citizen can now appear before a Notary Public to notarise the Deed of Incorporation of the company, presenting the following documents:

              • The bylaws, with the minimum content required by Spanish law (Model Bylaws of a Public Limited Company, Model Bylaws of a Private Limited Company);
              • The negative certificate of denomination issued by the Central Mercantile Registry (reservation of name for the company);
              • In the case of monetary contributions, the deposit slip issued by the bank accrediting the disbursement of the initial contributions (or, if applicable, the corresponding amount in cash) is required. In the case of Limited Companies, the notary must provide bank proof of payment of a minimum of 3,000 euros, payment to be made directly by the individual who will be the owner of the company’s shares.
              • If the foreign citizen planning to incorporate the company does not appear personally before the Notary, they may do so through a representative. The original power of attorney granted to the representative, duly legalized (by apostille or document legalization) and accompanied by sworn translation, must be provided.
              • The original identification documents (national identity card or passport and NIE/TIE) of the persons who constitute the new company;
              • The foreign investment declaration duly completed. Although merely informative, this mandatory document must be filed with the Foreign Investment Registry of the Ministry of Economy and Competitiveness within one month of the New Company’s incorporation. The notary can take care of it if requested (Form D-1A).

              Incorporation by a legal entity

              The foreign company that plans to incorporate a Spanish company must obtain a Tax Identification Number before the incorporation, in front of a Notary Public, by submitting an application form (EX15).

              This application for a NIF must be signed by a legal representative of the company who, in the event of not being a legal resident in Spain (Spanish or foreigner with a residence permit), must obtain a NIE as a non-resident beforehand.

              If a foreign company grants power of attorney to a legal resident in Spain to obtain the company’s NIF, the Tax Agency requires that the grantor of the power of attorney also have an NIE as a non-resident. If he does not have a NIE, the Tax Administration can grant him a provisional NIE by means of form 030, together with a photocopy of his passport.

              Once empowered, this legal representative of the foreign company must sign the application for the census form (form 036) and this application must be presented, in person, at the Tax Agency office, enclosing:

              • Census declaration (Form 036) signed by the person empowered by the foreign company requesting the NIF, and
              • Power of attorney granted by the authorized representative of the non-resident entity, duly notarized and legalized (see “Legalization and translation of documents”), in which a legal resident person is appointed as representative of the non-resident entity for the purpose of obtaining the NIF.

              Once the foreign company is registered with the Tax Agency, it can proceed with the incorporation.

              Introduction: A Paradigm Shift in Conflict Resolution

              The approval of Organic Law 1/2025, of January 2, on measures for the efficiency of the Public Justice Service, marks a turning point in the Spanish judicial system. This legislation is not limited to introducing procedural changes, but reflects a profound transformation in the very concept of justice. The legislator has made a firm commitment to promoting alternatives to the judicial resolution of disputes, making prior negotiation a central element of the system.

              The saturation of the courts, the costs associated with judicial proceedings, and the search for more satisfactory solutions for the parties have prompted this reform, which places the so-called “appropriate means of non-jurisdictional dispute resolution” as the cornerstone of a new justice model oriented towards dialogue and agreement.

              The philosophy behind alternative means of dispute resolution

              Beyond the decongestion of the courts, this reform responds to a philosophy that understands that not all conflicts necessarily require a judicial response. Alternative means of dispute resolution are based on the premise that many conflicts can find more satisfactory and lasting solutions, adapted to the needs and interests of the parties, when they actively participate in their construction.

              Organic Law 1/2025 defines these means as “any type of negotiating activity, recognized in this or other laws, state or autonomous, to which the parties to a conflict resort in good faith with the aim of finding an extrajudicial solution to it, either by themselves or with the intervention of a neutral third party”. This broad and flexible definition is intended to cover various forms of negotiation whose common denominator is the protagonism of the parties in the resolution of their own disputes.

              A range of possibilities: Diversity of mechanisms for diversity of conflicts

              One of the most noteworthy aspects of the new regulation is that it does not rely on a single model of alternative dispute resolution but recognizes the diversity of situations and the need to offer different tools adapted to each particular case.

              Mediation, already consolidated in our legal system through Law 5/2012, maintains its relevance as the preferred method, but other modalities such as conciliation in its various variants (notarial, registry, before a lawyer of the Administration of Justice or judicial), the opinion of independent experts, confidential binding offers, or the novel process of collaborative law are added to it.

              This plurality of mechanisms reflects the complexity of contemporary legal relationships and the need to provide tailored responses to each type of conflict. Resolving a neighborhood dispute is not the same as resolving a complex business dispute, and the legislator has been aware that “one size fits all” would not be effective for the diversity of situations that may arise.

              The controversial commitment to enforceability: The requirement of procedural validity

              Undoubtedly, the most innovative -and probably the most controversial- aspect of the new regulation is the configuration of these means as a mandatory prerequisite for resorting to judicial proceedings in certain areas. This decision represents a qualitative leap with respect to the previous regulation, which mainly favored the voluntary nature of these mechanisms.

              From the entry into force of Organic Law 1/2025, April 3, 2025, the claim in the civil jurisdictional order will not be admitted if it is not justified that the resolution of the conflict has been previously attempted by any of the recognized alternative ways. Not only that, but also the identity between the object of the previous negotiation and the object of the litigation to be initiated must be established.

              This mandatory nature has been the subject of intense debate. Its advocates argue that it is necessary to promote cultural change in a traditionally litigious society, while its detractors warn of the risk of turning these mechanisms into mere formalities that distort their true purpose.

              The truth is that the legislator has tried to find a balance, excluding from this obligation certain particularly sensitive matters or those which, by their nature, require an immediate judicial response. Thus, issues such as the judicial protection of fundamental rights, measures for the protection of minors, or the request for precautionary measures, among others, are exempted from the requirement of prior negotiation.

              The guiding principles: Autonomy and confidentiality as pillars of the system

              The effectiveness of alternative dispute resolution rests mainly on two fundamental principles: the autonomy of the parties and the confidentiality of the process.

              The principle of private autonomy recognizes that the parties themselves best know their interests and needs and are, therefore, in the best position to find solutions adapted to their situation. The law establishes that the parties are free to settle, if they respect the law, good faith, and public policy. This freedom is essential for the solutions reached to be truly satisfactory and lasting.

              The principle of confidentiality is crucial to creating a climate of trust that allows the parties to express themselves freely during the negotiation process. The law establishes that the information and documentation disclosed during the negotiation must be kept confidential, with very specific exceptions, such as express waivers by the parties, court orders in criminal matters, or reasons of public order.

              This duty of confidentiality extends to all participants in the process: the parties, their lawyers, and, where appropriate, the neutral third party involved. The aim is to ensure that what is said or proposed during the negotiation cannot be used later in a possible judicial process, thus promoting a sincere and constructive dialogue.

              The Negotiation Process: Relevant Procedural Aspects

              The regulation of the procedural aspects of the different means of dispute resolution also reflects the legislator’s desire to combine the necessary flexibility with the minimum guarantees required.

              As regards standing, the initiative to resort to these mechanisms may come from either party, from both by mutual agreement, or even from a judicial referral. This recognizes both the parties’ autonomy and the possibility that the judicial system itself may encourage the use of these alternative channels.

              Regarding the involvement of professionals, the law generally prefers a non-mandatory approach to legal assistance, except in specific situations like the preparation of binding offers (with exceptions for smaller amounts). This flexibility aims to enhance access to these mechanisms; however, the complexity of many legal disputes often makes it wise to seek professional guidance.

              A particularly relevant aspect is the effect that the request for these mechanisms has on the statute of limitations and expiration periods. The law establishes that such a request interrupts the statute of limitations or suspends the expiration of actions from the date of communication to the other party, thus avoiding the attempt of an amicable solution that may prejudice the rights of the party that promotes it.

              In terms of form, the preferred method is face-to-face, although the use of telematic means is permitted by agreement of the parties or in the case of claims for amounts of less than 600 euros. This flexibility is particularly appropriate in a context of increasing digitalization of legal relations.

              Specific Modalities: Diversity of mechanisms for diversity of conflicts

              Among the different modalities recognized by the law, it is worthwhile to focus on some that present particularly novel or relevant characteristics.

              Private conciliation involves the intervention of a person with technical or legal expertise related to the dispute’s subject matter. The law requires this person to be registered in a recognized professional association or in a register of mediators and to act impartially and confidentially. This mechanism takes advantage of the specialized knowledge of certain professionals to facilitate agreement in technically complex matters.

              The confidential binding offer is a particularly interesting mechanism for certain types of disputes. One of the parties makes an offer that is binding on it in the event of acceptance by the other party. The law requires that the identity of the offeror, the actual receipt by the other party, and the detailed content of the offer be recorded. This instrument can be particularly useful in financial claims, where the main obstacle to settlement is often the amount.

              The independent expert opinion consists of commissioning an opinion from an expert in the subject matter of the dispute. Unlike other mechanisms, this opinion is not binding, but may serve as a basis for agreement if the parties accept it, or at least to clarify the technical aspects of the dispute. Following the issuance of the opinion, the parties may accept it as an agreement, propose improvements or reject it, in which case the procedural requirement is deemed to be fulfilled.

              Finally, the collaborative law process represents perhaps the most innovative aspect of the new regulation. It is a structured negotiation in which the parties, assisted by their respective lawyers, work together to reach a satisfactory solution, being able to integrate other professionals (psychologists, economists, etc.) when the complexity of the case requires it. At the end, minutes are drawn up with the participants, the sessions held and the agreements reached.

              The challenge of implementation: From theory to practice

              The real effectiveness of this new system will depend largely on how it is implemented in practice. It is not enough to make it compulsory to attempt out-of-court settlement; this attempt must be genuine and not become a mere formality.

              In this regard, the law requires that the negotiation attempt be “real and credible; it cannot be fictitious.” To this end, it establishes documentation requirements that vary depending on whether or not a neutral third party is involved but always include a responsible statement that the parties have intervened in good faith in the process.

              Likewise, the law regulates in detail when the negotiation process is understood to be concluded, whether it concludes with or without an agreement. In the event of an agreement, it must be formalized by identifying the parties and, if applicable, their lawyers and the neutral third party, indicating the place and date, as well as the obligations assumed by each party.

              The possibility of converting the agreement into a public deed to convert it into an enforceable title reinforces its value and facilitates its compliance, avoiding the possibility of non-compliance with the agreement, forcing the initiation of a declaratory judicial proceeding.

              A horizon to be explored: Perspectives and challenges

              Organic Law 1/2025 represents a turning point in the conception of justice in Spain, bringing us closer to models already consolidated in other countries with a long tradition in alternative means of conflict resolution. The United States, Canada and the Nordic countries have been using these mechanisms for decades, with generally positive results in terms of user satisfaction and decongestion of the courts.

              However, each legal system has its particularities, and the success of these mechanisms depends not only on their legal regulation but also on cultural, sociological, and organizational factors. Spanish society’s traditional litigiousness, the poor negotiating culture in certain areas, and the lack of specific training of many professionals are challenges that must be faced.

              The commitment to obligatory nature as an initial impulse may be understandable in a context of paradigm change, but the real success of these mechanisms will come from their capacity to generate satisfactory solutions that will progressively make them the preferred option on their own merits, beyond their obligatory nature.

              Conclusion: Between Hope and Caution

              The new regulation of the appropriate means of non-jurisdictional dispute resolution is in line with a clear international trend towards the promotion of alternatives to judicial dispute resolution. This trend responds both to practical needs – decongesting the courts, reducing costs – and to a philosophy that values the protagonism of the parties in the management of their own conflicts.

              In this sense, Spanish legislation joins a global movement that has shown positive results in many jurisdictions. However, only time will tell whether the legislative technique used, especially the commitment to mandatory nature as a procedural requirement, is the most appropriate to achieve the true purpose of encouraging agreement in order to avoid litigation.

              The success of this reform will depend not only on its regulatory design, but also on factors such as adequate training of the professionals involved, public awareness of the advantages of these alternative routes, and the system’s capacity to evaluate and adapt according to the results obtained.

              In short, we are facing an ambitious and necessary reform, which opens up a hopeful horizon but which will have to overcome important challenges in order to consolidate itself as a true paradigm shift in the administration of justice in Spain. The true criterion of success will not be the number of negotiation attempts made, but the quality of the agreements reached and the satisfaction of citizens with a more participatory, efficient justice system adapted to their real needs.

              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.

              Generative artificial intelligence (generative AI) is a variant of artificial intelligence aimed at creating models capable of generating new and original content. These models are trained to learn patterns and features from data sets, and can then generate similar or even completely new content based on those learned patterns.

              A specific type of generative model is the generative neural network (GAN). GANs consist of two neural networks, one generative and one discriminative, working together. The generative network creates new content, while the discriminative network evaluates the authenticity of that content. The generative model can produce increasingly realistic results as these networks compete and improve.

              Generative AI has applications in various areas, such as art creation, creative text generation, speech synthesis, and so on. It is also used in fields such as image enhancement and machine translation. This approach has advanced significantly in recent years and continues to be an active area of research in artificial intelligence.

              Generative artificial intelligence applied to the legal sector involves using generative models to assist in various tasks and processes related to legal practice.

              Positive aspects of generative AI applied to the legal sector

              The integration of generative artificial intelligence in the legal field has emerged as a transformative catalyst, providing a number of significant benefits that positively impact the efficiency, accuracy, and accessibility of legal services. Throughout this evolution, several aspects highlight the substantial contribution of artificial intelligence to legal practice.

              Some of these benefits are highlighted below:

              Legal Document Drafting

              Generative AI can be used to draft legal documents, contracts and other legal texts. It can generate content based on patterns learned from large sets of legal data, facilitating the creation of standard documents and reducing the workload for legal professionals, also ensuring consistency and accuracy in legal drafting, reducing risks associated with possible human errors.

              Analysis of large volumes of data

              The ability to process information at a speed and scale that surpasses human abilities enables the identification of patterns, trends and precedents with greater speed and accuracy. This advanced analysis helps strengthen legal arguments, improve strategic decision-making and provide clients with stronger legal representation.

              Improved legal research

              Generative artificial intelligence systems can perform faster and more accurate searches of legal databases, law libraries and case law. This streamlines the legal research process, providing professionals with access to relevant information more efficiently.

              Legal Argument Generation

              Generative IA can help generate sound legal arguments. By understanding case law and legal principles, it can help lawyers build better arguments and develop strategies for specific cases.

              Automated Legal Advice

              Automated legal advice systems can be developed that use generative AI to answer common legal questions and provide basic guidance. This could be useful for simpler legal queries and to improve access to legal information.

              Personalized legal advice

              Artificial intelligence can analyze case-specific data and provide personalized legal advice. This helps legal professionals make more informed and strategic decisions by considering situation-specific factors.

              Legal Scenario Simulation

              Generative AI can simulate legal scenarios to help lawyers evaluate possible outcomes and risks in particular cases. This could be useful in strategic decision-making and legal planning.

              Automation of repetitive tasks

              The ability of artificial intelligence systems to take on the workload related to standard document review and basic information management allows legal professionals to focus on more complex and strategic issues. This automation not only saves time but also decreases the likelihood of human error, thus strengthening the overall quality of legal work.

              Optimization of internal processes

              Artificial intelligence can significantly improve efficiency in case management, meeting scheduling, and other day-to-day operations in law firms. This optimization not only streamlines internal practices but also enables more efficient resource allocation and more effective workload management.

              In short, the application of generative artificial intelligence in the legal sector transcends the mere automation of tasks, encompassing fundamental aspects that improve the quality and efficiency of legal services. From the automation of routine tasks to advanced data analysis and document generation, artificial intelligence is a powerful ally that drives positive developments in legal practice. This advancement not only improves the internal efficiency of law firms, but also strengthens the ability of legal professionals to provide accurate and strategic advice in an ever-changing legal environment.

              While generative AI offers many possibilities, its implementation in the legal sector must be approached cautiously to ensure accuracy, ethics, and compliance with applicable laws and regulations. Human intervention and legal oversight remain essential to ensure quality and accountability in using these technologies.

              Negative aspects of the application of generative AI to the legal sector

              While promising, the integration of generative artificial intelligence in the legal sector poses a number of challenges and negative aspects that require attention and careful consideration. Despite significant advances in automation and process improvement, addressing the following adverse aspects is crucial to ensure an ethical and effective implementation.

              Lack of human discernment

              Although artificial intelligence systems can analyze data at impressive speed, they lack human understanding and sensitivity. Interpreting legal nuances, understanding emotional contexts, and making decisions based on ethics are skills intrinsic to legal professionals. Over-reliance on technology in interpreting complex situations could result in inadequate or insensitive assessments.

              Risk of algorithmic bias

              Algorithms used in generative artificial intelligence are trained on historical data, and if that data contains cultural, ethnic, or gender biases, the results generated may reflect and perpetuate those biases. This raises ethical and legal concerns, as automated decisions could be inherently discriminatory, affecting fairness and justice in the legal system.

              Data security and privacy

              The implementation of artificial intelligence in the legal field involves handling highly confidential information. Systems’ vulnerability to cyber attacks could expose sensitive data, compromising the confidentiality and integrity of the legal system. Good protection against cyber threats is essential to maintaining confidence in these technologies.

              Job displacement

              As artificial intelligence takes over routine and repetitive tasks, there is a risk that certain jobs in the legal sector will be affected. This raises questions about role restructuring and the need for legal professionals to acquire new skills to adapt to a changing work environment. The ethics of this displacement and measures to mitigate its impacts must be carefully addressed.

              Ethical complexity in decision making

              Generative artificial intelligence algorithms often operate opaquely, meaning that the logic behind their decisions can be difficult to understand or explain. This raises ethical questions about accountability and transparency in legal decision-making, especially in critical cases where a clear explanation of decisions is critical.

              Costs associated with implementation

              From initial development to ongoing training and system maintenance, law firms, especially smaller ones, can face significant financial challenges. This raises the issue of equity in access to these technologies and the need to seek solutions that do not perpetuate inequities in the legal system.

              Cultural resistance and adaptation

              Cultural resistance and adaptation are factors that should not be overlooked. The introduction of generative artificial intelligence may encounter resistance among legal professionals who may be reluctant to rely on emerging technologies. Organizational culture and acceptance of these tools may require time and effort for successful implementation. Training and effective communication are essential to overcome these barriers.

              In conclusion, the application of generative artificial intelligence in the legal sector, while offering significant benefits, is not without its challenges. Addressing the lack of human discernment, mitigating the risk of algorithmic bias, ensuring data security and privacy, managing labor displacement, addressing ethical complexity in decision making, and managing associated costs are imperative for ethical and effective implementation. Careful thought and appropriate regulation are essential to harness the benefits of artificial intelligence without compromising fundamental principles of fairness and justice in the legal system.

              The Commercial Court No. 17 of Madrid has ruled in the SuperLiga case following the guidelines set by the CJEU in its decision of December 21 last year.

              The lawsuit was filed by ESCL, an entity formed by Real Madrid and other soccer clubs to promote the SuperLiga, most of which abandoned the project due to pressure from fans and their governments against FIFA and UEFA, with RFEF and La Liga voluntarily joining the defendants.

              As usually happens with elections, but not with sentences, everyone, plaintiffs and defendants, has shown their satisfaction with this ruling, which is not yet final, as it can be appealed before the Provincial Court of Madrid.

              In brief, the proceedings involved whether the FIFA/UEFA regulations on the organization and authorization of soccer competitions and the management of the rights deriving from such competitions were in accordance with Community competition law, articles 101 and 102 of the TFEU.

              The CJEU judgment of last December had already ruled that the regulatory rules of FIFA and UEFA relating to prior authorization and participation, which give these entities the power to prevent any competing company from accessing the market, constitute an abuse of a dominant position and infringe the provisions of Articles 101 and 102 TFEU, mainly because they are not accompanied by certain limits and controls guaranteeing transparency and objectivity in the decision not to authorize such international competitions, which allow the risk of abuse of a dominant position to be excluded.

              Likewise, the Court of Justice, using the same arguments and about the exploitation rights deriving from sporting competitions, states that the FIFA and UEFA rules are contrary to the provisions of Articles 101 and 102 TFEU, since they attribute to themselves exclusive responsibility for the marketing of the rights in question.

              Following the guidelines set by the CJEU judgment, the judgment of Madrid Commercial Court No. 17 partially upheld the lawsuit filed by ESLC against UEFA and FIFA. It declared that both organizations have abused their dominant position and are preventing free competition in the market by granting themselves the discretionary power to prohibit participation in alternative competitions and impose unjustified and disproportionate restrictions, conduct that infringes Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

              The ruling condemns FIFA and UEFA to cease the anticompetitive conduct sanctioned and prohibits them from repeating them in the future. It also condemns them to immediately remove all the effects of the anticompetitive actions that occurred before or during the duration of the lawsuit, which began on April 18, 2021, when ESLC announced the launch of the SupeLiga.

              Finally, the judgment states that the content of the declarations issued by FIFA, UEFA and other entities (including the federations and leagues of England, Italy and Spain, some of whose clubs were part of the project) on April 18, 2021 (referred to in the lawsuit as the ‘Declaration’) in relation to the pan-European international competition project, also infringes Articles 101 and 102 TFEU.

              It should be noted that the judgment expressly states that “inasmuch as the SuperLiga in the terms initially set forth in the lawsuit, i.e. in accordance with the initial project has been abandoned and discarded by the promoters themselves, the motions in relation thereto must likewise lapse; it is not possible to impose a prohibition or restriction in the abstract, i.e. to impose a prohibition in the future of any other project or modification of the one already presented”.

              Based on this argument, the Judgment rejects the requests included in section f) of the lawsuit which, in summary, requested that FIFA and UEFA be ordered to refrain from any conduct, measure, or action or issue any statement that prevents or hinders in any way the preparation of the SuperLiga; and the commercial judge concludes by stating in this regard that the purpose of these proceedings is not “the authorization of any competition, but to lay the foundations to channel a system of free competition for the organization of soccer competitions”.

              Thereafter, everyone is happy with the result; La Liga issued a statement stressing that the ruling does not endorse a project which, moreover, according to the same ruling, has been abandoned by its promoters. UEFA says that it is pleased to note that the judge has given a good and valid system of prior authorization for third-party competitions to be approved in accordance with UEFA’s authorization rules and has recognized the undoubted benefits of these rules for the soccer sporting system, concluding that “the judgment does not give third parties the right to develop competitions without authorization and does not refer to any future project or to any modified version of an existing project”.

              The plaintiffs, too, are happy and content to proclaim that UEFA’s statutes and the aggressive measures taken to protect its monopoly have stifled innovation for decades. Clubs should not have to fear threats of sanctions simply for having ideas and having conversations. The era of monopoly is definitely over.

              Rarely does one find that a judgment leaves all the litigants so happy and content, but that seems to be the case here. Or at least that is what all of them have been interested in communicating, when the harsh reality is, on the one hand, that the SuperLiga project as it was structured when the lawsuit started and FIFA/UEFA reacted furiously, is dead and buried, and on the other hand, that the happy world in which FIFA and UEFA regulated soccer and competitions as a private preserve, considered themselves immune and alien to ordinary justice and shared the money generated without being accountable to the Courts of Justice and threatened to expel or expel the rebellious spirits, has come to an end.

              Commercial agents have specific regulations with rights and obligations that are “mandatory”: those who sign an agency contract cannot derogate from them. Answering whether an influencer can be an agent is essential because, if he or she is an agent, the agent regulations will apply to him or her.

              Let’s take it one step at a time. The influencer we will talk about is the person who, with their actions and comments (blogs, social media accounts, videos, events, or a bit of everything), talks to their followers about the advantages of certain products or services identified with a certain third-party brand. In exchange for this, the influencer is paid.[1]

              A commercial agent is someone who promotes the contracting of others’ products or services, does so in a stable way, and gets paid in return. He or she can also conclude the contract, but this is not essential.

              The law imposes certain obligations and guarantees rights to those signing an agency contract. If the influencer is considered an “agent”, he or she should also have them. And there are several of them: for example, the duration, the notice to be given to terminate the contract, the obligations of the parties… And the most relevant, the right of the agent to receive compensation at the end of the relationship for the clientele that has been generated. If an influencer is an agent, he would also have this right.

              How can an influencer be assessed as an agent? For that we must analyse two things: (a) the contract (and be careful because there is a contract, even if it is not written) and (b) how the parties have behaved.

              The elements that, in my opinion, are most relevant to conclude that an influencer is an agent would be the following:

               

              a) the influencer promotes the contracting of services or the purchase of products and does so independently.

              The contract will indicate what the influencer must do. It will be clearer to consider him as an agent if his comments encourage contracting: for example, if they include a link to the manufacturer’s website, if he offers a discount code, if he allows orders to be placed with him. And if he does so as an independent “professional”, and not as an employee (with a timetable, means, instructions).

              It may be more difficult to consider him as an agent if he limits himself to talking about the benefits of the product or service, appearing in advertising as a brand image, and using a certain product, and speaking well of it. The important thing, in my opinion, is to examine whether the influencer’s activity is aimed at getting people to buy the product he or she is talking about, or whether what he or she is doing is more generic persuasion (appearing in advertising, lending his or her image to a product, carrying out demonstrations of its use), or even whether he or she is only seeking to promote himself or herself as a vehicle for general information (for example, influencers who make comparisons of products without trying to get people to buy one or the other). In the first case (trying to get people to buy the product) it would be easier to consider it as an “agent”, and less so in the other examples.

               

              b) this “promotion” is done in a continuous or stable manner.

              Be careful because this continuity or stability does not mean that the contract has to be of indefinite duration. Rather, it is the opposite of a sporadic relationship. A one-year contract may be sufficient, while several unconnected interventions, even if they last longer, may not be sufficient.

              In this case, influencers who make occasional comments, who intervene with isolated actions, who limit themselves to making comparisons without promoting the purchase of one or the other, and even if all this leads to sales, even if their comments are frequent and even if they can have a great influence on the behavior of their followers, would be excluded as agents.

               

              c) they receive remuneration for their activity.

              An influencer who is remunerated based on sales (e.g., by promoting a discount code, a specific link, or referring to your website for orders) can more easily be considered as an agent. But also, if he or she only receives a fixed amount for their promotion. On the other hand, influencers who do not receive any remuneration from the brand (e.g. someone who talks about the benefits of a product in comparison with others, but without linking it to its promotion) would be excluded.

               

              Conclusion

              The borderline between what qualifies an influencer as an agent and what does not can be very thin, especially because contracts are often not unambiguous and sometimes their services are multiple. The most important thing is to carefully analyse the contract and the parties’ behaviour.

              An influencer could be considered a commercial agent to the extent that his or her activity promotes the contracting of the product (not simply if he or she carries out informative or image work), that it is done on a stable basis (and not merely anecdotal or sporadic) and in exchange for remuneration.

              To assess the specific situation, it is essential to analyse the contract (if it is written, this is easier) and the parties’ behaviour.

              In short, to draw up a contract with an influencer or, if it has already been signed, but you want to conclude it, you will have to pay attention to these elements. As an influencer you may have a strong interest in being considered an agent at the end of the contract and thus be entitled to compensation, while as employer you will prefer the opposite.

              FINAL NOTE. In Spain and at the date of this comment (9 June 2024) I am not aware of any judgement dealing with this issue. My proposal is based on my experience of more than 30 years advising and litigating on agency contracts. On the other hand, and as far as I know, there is at least one judgment in Rome (Italy) dealing with the matter: Tribunale di Roma; Sezione Lavoro 4º, St. 2615 of 4 March 2024; R. G. n. 38445/2022.

              Ignacio Alonso

              Practice areas

              • Agency
              • Corporate
              • Distribution
              • Franchising
              Contact Ignacio

              Contact Ignacio





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                Spain – The agent’s right to information after the conclusion of his contract

                15 April 2024

                • Spain
                • Distribution

                The increase in so-called cybercrime in recent years is so significant that it requires strong legislative and judicial responses. Losses from online fraud in Europe exceed $100 billion, according to Nasdaq Ventures, of which $5 billion correspond to Spain.

                In Spain, 192,375 cases of computer fraud were reported in 2019, but by 2023 this figure had risen to 427,448. According to the latest official data available, computer fraud accounts for 90.4% of all cybercrimes, with growth of 378% between 2016 and 2023.

                There are many different types of computer fraud, and they are named in English (after all, the lingua franca of our time), including, among other ingenious methods used by skilled fraudsters, those with curious and amusing names (except for those who suffer from them) such as phishing, pharming, juice jacking, tabnabbing, bluesnarfing, catfishing, spoofing, vishing, smishing, whaling, carding, and the one we are interested in today, man in the middle (MITM).

                Man in the Middle scam: how it works

                This MITM fraud involves intercepting communications between two devices connected to a network, allowing the attacker to alter and divert messages exchanged between users. The fraudster intercepts a communication in which one user requests a payment from another and then modifies the IBAN of the bank account to which the transfer should be made in order to obtain the money. The process generally unfolds as follows:

                • Without the company noticing, an attacker intercepts and manipulates an email, changing the IBAN number of the account to which the payment should be made.
                • The cybercriminal impersonates the supplier, sending the message from an email address that is almost identical to the original, but with a slight alteration that is almost imperceptible.
                • The receiving company, trusting the authenticity of the message, makes the transfer to the fraudulent account.

                 

                This results in a transfer of assets to the detriment of the person ordering the transfer and in favor of the cyber thief, so that when the person ordering the transfer notices the error, their first reaction is to try to contact the receiving bank in the hope that the funds can be blocked in time. However, in most cases, the cybercriminal has been quicker: the money has already been transferred to another account or withdrawn, leaving little room for maneuvering, except for the initiation of legal proceedings, which we will discuss below.

                The immediate question is what responsibility the bank that has received the transfer order from the deceived user and credits the cyber fraudster’s account with the amount in question has in cases where the payer identifies not only the (fraudulent) IBAN but also the name of the beneficiary of the payment order, which obviously does not match the name of the holder of the bank account receiving the funds.

                The common-sense answer would be that the bank receiving the transfer should confirm that the holder of the account to which the funds are credited and the individual or entity identified as the beneficiary in the transfer order match; if this is not the case, it should suspend the payment and request clarification from the payer. However, this is not the case in light of EU legislation and its transposition into Spanish law, as we will see below.

                Until October 9, the European banking system operated under the premise that the validity of a transfer was based exclusively on the correctness of the IBAN. In other words, if the account number was correct, the transaction was considered valid, even if the beneficiary’s name did not match. This practice has led to numerous cases of fraud, unintentional errors, and loss of funds, especially in instant transfers, where speed can compromise security.

                The most reasonable option for the defrauded payer to recover their money is to sue the bank receiving the payment order (with which they have no contractual relationship) for non-contractual liability under Article 1124 of the Civil Code; in fact, criminal proceedings against the account holder, who is usually referred to in slang as a “mule,” do not usually have a satisfactory outcome, both because the bird usually flies away and because of its lack of solvency.

                The case law of the Provincial Courts has been divided between rulings that strictly and faithfully applied Article 59 of Royal Decree-Law 19/2018 of November 23, on payment services and other urgent financial measures, dismissing the claims of those defrauded, and others in which arguments were sought under the premise of lack of diligence to condemn the bank to compensate the payer.

                This has led to the establishment of quasi-objective liability for banks in relation to digital fraud, imposing a higher standard of diligence on them and transferring the risk inherent in online banking to them, except in cases of willful misconduct or gross negligence on the part of the customer. This line of reasoning, which has been developed from lower court rulings (AP Madrid 178/2015; AP Alicante 107/2018; AP Valencia 212/2021) to the Supreme Court itself (STS 571/2025, among others), is in line with the idea that it is up to the bank to prove that its systems were secure, up to date, and sufficient to prevent the crime from being committed.

                In this context, the concept of bonus argentarius takes on renewed relevance. This is a principle that was included in Law 57/68 to protect home buyers in the real estate sector, but the Supreme Court has ruled on several occasions that it can also be applied to other financial investments. This means that, in the event of losses due to negligence on the part of the financial institution, the customer can file a claim under Law 57/68 and hold the institution liable.

                The bonus argentarius is based on the presumption of fault on the part of the financial institution, which means that even if the customer has no concrete evidence of negligence, it is assumed due to the duty of care that the institution must exercise in the management of investments.

                Based on this principle, the diligence required of financial professionals is not that of the average trader or pater familias, but that of a qualified expert who assumes the obligation to protect the funds entrusted to them by implementing “necessary and renewable” security mechanisms. This implies not only maintaining basic technical measures for enhanced authentication, but also proactively adopting internationally recognized anti-fraud solutions, such as name-IBAN verification (Confirmation of Payee or IBAN-Naam Check), which have proven effective in comparable jurisdictions.

                In line with that doctrine and case law, it can be said that the omission of beneficiary verification measures today constitutes a breach of the contractual duty of diligence and good faith (Articles 1104 and 1258 of the Civil Code), giving rise to civil liability for the damage caused, such that MITM fraud cannot be considered a residual risk attributable to the customer, but rather a systemic security failure attributable to the financial institution, as the designer and custodian of the electronic payment channel.

                In this state of affairs, the Supreme Court, in its recent ruling of March 27, 2025, opted for the alternative of strict application of Article 59, arguing that “if the payment service user provides additional information to that required (specification of the information or unique identifier that the payment service user must provide for the correct initiation or execution of a payment order), the payment service provider shall only be liable for the execution of payment transactions in accordance with the unique identifier provided by the payment service user… and that the liability of the payment service provider, both at Community and national level, is such that it fulfills its obligation by executing the payment transaction in accordance with the unique identifier, without the addition of further information implying a higher standard of diligence

                It is true that, in conclusion, the Supreme Court offered a glimmer of hope to defrauded users when it stated that “the interpretation set out above does not exempt the payment service provider from liability when circumstances, unrelated to the provision of additional data, are found to have contributed to the defective execution of the transaction, either because an additional requirement or demand (e.g., the identification of the beneficiary), or because the payment service provider of the payer or the beneficiary had taken advantage of the error for their own benefit, or because, once the existence of the error had been communicated without delay, one or the other had not taken the measures required by the diligence of an expert trader to allow retroaction or, where appropriate, to minimize the damage.”

                Regulation (EU) 2024/886: a paradigm shift

                And in this scenario fraught with doubts, Regulation (EU) 2024/886 bursts onto the scene, representing a 180-degree turn and a paradigm shift: the new European Regulation, approved in April 2024 and coming into force on October 9, 2025, establishes a clear obligation for banks: they must verify that the name of the beneficiary provided by the payer matches the IBAN holder before executing an immediate transfer in euros.

                The new features of this regulation are

                • mandatory application to all instant transfers within the SEPA area,
                • the new name matching system: if there is a discrepancy between the name and the IBAN, the bank must alert the customer before executing the transaction, and
                • increased liability for financial institutions in the event of fraud or error due to lack of verification.

                In short, the aim is to reduce the risk of fraud, protect consumers, and increase confidence in digital payments.

                This means that Law 19/2018, which regulates payment services in Spain and does not require verification of the beneficiary’s identity, is now outdated, underscoring the need for a national legislative review to harmonize the legal framework with European requirements.

                In conclusion, the obligation to verify the beneficiary of transfers represents a significant step forward in consumer protection and the fight against financial fraud. Regulation (EU) 2024/886 marks a turning point in banking operations, imposing an active responsibility on institutions to ensure the authenticity of transfers.

                In any case, the question remains open regarding the solution to MITM frauds executed before October 9, 2025, and the responsibility of the banking institution. For the time being, the aforementioned Supreme Court ruling of March 27 closes the door to claims against banks, but it cannot be ruled out that the entry into force of Regulation 2024/886 and the paradigm shift will lead to a rethinking of the Supreme Court’s position in line with the quasi-objective liability that lower courts have been maintaining. We will have to wait and see, but such a change would be a great success for bank users who have suffered from this MITM fraud and all other types of cyber fraud.

                It is quite common for business relationships with agents or distributors to last for years without any signed documents. And be careful, because we know that a contract can exist even verbally.

                The absence of a written contract will add difficulties in the event of a possible claim, so what you do between the decision to terminate, and the moment of the claim is very important. Remember: ‘anything you write will be used against you’.

                The decision to terminate a business relationship is a very delicate moment to which, for some reason, solicitors are not invited. Here are some examples (all real) in which companies or employees with the best of intentions wrote to the agent/distributor. All of them were subsequently very damaging to the company:

                Saying ‘We are terminating our business relationship’ when the strategy will be to argue that no such business relationship exists, but rather that there are separate and linked contracts (e.g., supply rather than ongoing distribution contract; very significant compensation consequences).

                ‘You no longer represent our company’, which may be evidence that you did so before.

                ‘As of day X, you may no longer act on behalf of our company,’ which would prove that you were previously able to act on its behalf.

                ‘You may not attend the X trade fair on our behalf.’ A way of confirming that the agent/distributor’s responsibilities included participating in trade fairs and probably accrediting the customers obtained.

                ‘The sales you promoted have been significantly reduced in year N.’ When there is no written contract or other form of documentation, imputing a breach of an obligation that is not clear can be counterproductive.

                Saying ‘You are not actively promoting our products’ and then adding: ‘We urge you to stop promoting the sale of our products’.

                ‘You are no longer our exclusive representative’, which proves a type of relationship (representation/agent) and a tacit or express agreement (‘exclusivity’).

                ‘We have appointed another representative in your area’, which shows that the agent/distributor had an assigned area and was “representing”.

                ‘From this moment on, orders will be handled by X’, which also confirms a type of relationship.

                 

                In summary: from the moment the company considers terminating a commercial relationship, especially when it is not in writing and before sending any letter, it is advisable to think carefully about the strategy in case of a possible claim. This is the best time to seek advice and avoid surprises. Any communication that is not in line with this strategy designed from the outset can only lead to confusion and problems.

                In Spain, companies can be incorporated by legal entities or persons of any nationality, residing in Spain or abroad.

                Incorporation by a natural person

                The foreign citizen who intends to incorporate a Spanish company, and is not a resident in Spain, must obtain a Foreigner Identification Number/ Tax Identification Number (NIE/NIF) prior to the incorporation of the company before a Notary Public.

                To obtain a NIE/NIF, he/she must, alternatively: (i) appear before the Spanish Consulate in his/her country of residence, or (ii) apply for it before the Immigration Office/Police Station in Spain; in both cases personally or through a representative. The representation will be accredited with sufficient power of attorney, in which it is expressly stated that the representative is authorised to present the application to obtain the NIE.

                Once the NIE has been obtained, it must be communicated to the Tax Agency by presenting a Form 030, a photocopy of the passport and a photocopy of the NIE. Once the NIE has been communicated to the Tax Agency, the foreign citizen can now appear before a Notary Public to notarise the Deed of Incorporation of the company, presenting the following documents:

                • The bylaws, with the minimum content required by Spanish law (Model Bylaws of a Public Limited Company, Model Bylaws of a Private Limited Company);
                • The negative certificate of denomination issued by the Central Mercantile Registry (reservation of name for the company);
                • In the case of monetary contributions, the deposit slip issued by the bank accrediting the disbursement of the initial contributions (or, if applicable, the corresponding amount in cash) is required. In the case of Limited Companies, the notary must provide bank proof of payment of a minimum of 3,000 euros, payment to be made directly by the individual who will be the owner of the company’s shares.
                • If the foreign citizen planning to incorporate the company does not appear personally before the Notary, they may do so through a representative. The original power of attorney granted to the representative, duly legalized (by apostille or document legalization) and accompanied by sworn translation, must be provided.
                • The original identification documents (national identity card or passport and NIE/TIE) of the persons who constitute the new company;
                • The foreign investment declaration duly completed. Although merely informative, this mandatory document must be filed with the Foreign Investment Registry of the Ministry of Economy and Competitiveness within one month of the New Company’s incorporation. The notary can take care of it if requested (Form D-1A).

                Incorporation by a legal entity

                The foreign company that plans to incorporate a Spanish company must obtain a Tax Identification Number before the incorporation, in front of a Notary Public, by submitting an application form (EX15).

                This application for a NIF must be signed by a legal representative of the company who, in the event of not being a legal resident in Spain (Spanish or foreigner with a residence permit), must obtain a NIE as a non-resident beforehand.

                If a foreign company grants power of attorney to a legal resident in Spain to obtain the company’s NIF, the Tax Agency requires that the grantor of the power of attorney also have an NIE as a non-resident. If he does not have a NIE, the Tax Administration can grant him a provisional NIE by means of form 030, together with a photocopy of his passport.

                Once empowered, this legal representative of the foreign company must sign the application for the census form (form 036) and this application must be presented, in person, at the Tax Agency office, enclosing:

                • Census declaration (Form 036) signed by the person empowered by the foreign company requesting the NIF, and
                • Power of attorney granted by the authorized representative of the non-resident entity, duly notarized and legalized (see “Legalization and translation of documents”), in which a legal resident person is appointed as representative of the non-resident entity for the purpose of obtaining the NIF.

                Once the foreign company is registered with the Tax Agency, it can proceed with the incorporation.

                Introduction: A Paradigm Shift in Conflict Resolution

                The approval of Organic Law 1/2025, of January 2, on measures for the efficiency of the Public Justice Service, marks a turning point in the Spanish judicial system. This legislation is not limited to introducing procedural changes, but reflects a profound transformation in the very concept of justice. The legislator has made a firm commitment to promoting alternatives to the judicial resolution of disputes, making prior negotiation a central element of the system.

                The saturation of the courts, the costs associated with judicial proceedings, and the search for more satisfactory solutions for the parties have prompted this reform, which places the so-called “appropriate means of non-jurisdictional dispute resolution” as the cornerstone of a new justice model oriented towards dialogue and agreement.

                The philosophy behind alternative means of dispute resolution

                Beyond the decongestion of the courts, this reform responds to a philosophy that understands that not all conflicts necessarily require a judicial response. Alternative means of dispute resolution are based on the premise that many conflicts can find more satisfactory and lasting solutions, adapted to the needs and interests of the parties, when they actively participate in their construction.

                Organic Law 1/2025 defines these means as “any type of negotiating activity, recognized in this or other laws, state or autonomous, to which the parties to a conflict resort in good faith with the aim of finding an extrajudicial solution to it, either by themselves or with the intervention of a neutral third party”. This broad and flexible definition is intended to cover various forms of negotiation whose common denominator is the protagonism of the parties in the resolution of their own disputes.

                A range of possibilities: Diversity of mechanisms for diversity of conflicts

                One of the most noteworthy aspects of the new regulation is that it does not rely on a single model of alternative dispute resolution but recognizes the diversity of situations and the need to offer different tools adapted to each particular case.

                Mediation, already consolidated in our legal system through Law 5/2012, maintains its relevance as the preferred method, but other modalities such as conciliation in its various variants (notarial, registry, before a lawyer of the Administration of Justice or judicial), the opinion of independent experts, confidential binding offers, or the novel process of collaborative law are added to it.

                This plurality of mechanisms reflects the complexity of contemporary legal relationships and the need to provide tailored responses to each type of conflict. Resolving a neighborhood dispute is not the same as resolving a complex business dispute, and the legislator has been aware that “one size fits all” would not be effective for the diversity of situations that may arise.

                The controversial commitment to enforceability: The requirement of procedural validity

                Undoubtedly, the most innovative -and probably the most controversial- aspect of the new regulation is the configuration of these means as a mandatory prerequisite for resorting to judicial proceedings in certain areas. This decision represents a qualitative leap with respect to the previous regulation, which mainly favored the voluntary nature of these mechanisms.

                From the entry into force of Organic Law 1/2025, April 3, 2025, the claim in the civil jurisdictional order will not be admitted if it is not justified that the resolution of the conflict has been previously attempted by any of the recognized alternative ways. Not only that, but also the identity between the object of the previous negotiation and the object of the litigation to be initiated must be established.

                This mandatory nature has been the subject of intense debate. Its advocates argue that it is necessary to promote cultural change in a traditionally litigious society, while its detractors warn of the risk of turning these mechanisms into mere formalities that distort their true purpose.

                The truth is that the legislator has tried to find a balance, excluding from this obligation certain particularly sensitive matters or those which, by their nature, require an immediate judicial response. Thus, issues such as the judicial protection of fundamental rights, measures for the protection of minors, or the request for precautionary measures, among others, are exempted from the requirement of prior negotiation.

                The guiding principles: Autonomy and confidentiality as pillars of the system

                The effectiveness of alternative dispute resolution rests mainly on two fundamental principles: the autonomy of the parties and the confidentiality of the process.

                The principle of private autonomy recognizes that the parties themselves best know their interests and needs and are, therefore, in the best position to find solutions adapted to their situation. The law establishes that the parties are free to settle, if they respect the law, good faith, and public policy. This freedom is essential for the solutions reached to be truly satisfactory and lasting.

                The principle of confidentiality is crucial to creating a climate of trust that allows the parties to express themselves freely during the negotiation process. The law establishes that the information and documentation disclosed during the negotiation must be kept confidential, with very specific exceptions, such as express waivers by the parties, court orders in criminal matters, or reasons of public order.

                This duty of confidentiality extends to all participants in the process: the parties, their lawyers, and, where appropriate, the neutral third party involved. The aim is to ensure that what is said or proposed during the negotiation cannot be used later in a possible judicial process, thus promoting a sincere and constructive dialogue.

                The Negotiation Process: Relevant Procedural Aspects

                The regulation of the procedural aspects of the different means of dispute resolution also reflects the legislator’s desire to combine the necessary flexibility with the minimum guarantees required.

                As regards standing, the initiative to resort to these mechanisms may come from either party, from both by mutual agreement, or even from a judicial referral. This recognizes both the parties’ autonomy and the possibility that the judicial system itself may encourage the use of these alternative channels.

                Regarding the involvement of professionals, the law generally prefers a non-mandatory approach to legal assistance, except in specific situations like the preparation of binding offers (with exceptions for smaller amounts). This flexibility aims to enhance access to these mechanisms; however, the complexity of many legal disputes often makes it wise to seek professional guidance.

                A particularly relevant aspect is the effect that the request for these mechanisms has on the statute of limitations and expiration periods. The law establishes that such a request interrupts the statute of limitations or suspends the expiration of actions from the date of communication to the other party, thus avoiding the attempt of an amicable solution that may prejudice the rights of the party that promotes it.

                In terms of form, the preferred method is face-to-face, although the use of telematic means is permitted by agreement of the parties or in the case of claims for amounts of less than 600 euros. This flexibility is particularly appropriate in a context of increasing digitalization of legal relations.

                Specific Modalities: Diversity of mechanisms for diversity of conflicts

                Among the different modalities recognized by the law, it is worthwhile to focus on some that present particularly novel or relevant characteristics.

                Private conciliation involves the intervention of a person with technical or legal expertise related to the dispute’s subject matter. The law requires this person to be registered in a recognized professional association or in a register of mediators and to act impartially and confidentially. This mechanism takes advantage of the specialized knowledge of certain professionals to facilitate agreement in technically complex matters.

                The confidential binding offer is a particularly interesting mechanism for certain types of disputes. One of the parties makes an offer that is binding on it in the event of acceptance by the other party. The law requires that the identity of the offeror, the actual receipt by the other party, and the detailed content of the offer be recorded. This instrument can be particularly useful in financial claims, where the main obstacle to settlement is often the amount.

                The independent expert opinion consists of commissioning an opinion from an expert in the subject matter of the dispute. Unlike other mechanisms, this opinion is not binding, but may serve as a basis for agreement if the parties accept it, or at least to clarify the technical aspects of the dispute. Following the issuance of the opinion, the parties may accept it as an agreement, propose improvements or reject it, in which case the procedural requirement is deemed to be fulfilled.

                Finally, the collaborative law process represents perhaps the most innovative aspect of the new regulation. It is a structured negotiation in which the parties, assisted by their respective lawyers, work together to reach a satisfactory solution, being able to integrate other professionals (psychologists, economists, etc.) when the complexity of the case requires it. At the end, minutes are drawn up with the participants, the sessions held and the agreements reached.

                The challenge of implementation: From theory to practice

                The real effectiveness of this new system will depend largely on how it is implemented in practice. It is not enough to make it compulsory to attempt out-of-court settlement; this attempt must be genuine and not become a mere formality.

                In this regard, the law requires that the negotiation attempt be “real and credible; it cannot be fictitious.” To this end, it establishes documentation requirements that vary depending on whether or not a neutral third party is involved but always include a responsible statement that the parties have intervened in good faith in the process.

                Likewise, the law regulates in detail when the negotiation process is understood to be concluded, whether it concludes with or without an agreement. In the event of an agreement, it must be formalized by identifying the parties and, if applicable, their lawyers and the neutral third party, indicating the place and date, as well as the obligations assumed by each party.

                The possibility of converting the agreement into a public deed to convert it into an enforceable title reinforces its value and facilitates its compliance, avoiding the possibility of non-compliance with the agreement, forcing the initiation of a declaratory judicial proceeding.

                A horizon to be explored: Perspectives and challenges

                Organic Law 1/2025 represents a turning point in the conception of justice in Spain, bringing us closer to models already consolidated in other countries with a long tradition in alternative means of conflict resolution. The United States, Canada and the Nordic countries have been using these mechanisms for decades, with generally positive results in terms of user satisfaction and decongestion of the courts.

                However, each legal system has its particularities, and the success of these mechanisms depends not only on their legal regulation but also on cultural, sociological, and organizational factors. Spanish society’s traditional litigiousness, the poor negotiating culture in certain areas, and the lack of specific training of many professionals are challenges that must be faced.

                The commitment to obligatory nature as an initial impulse may be understandable in a context of paradigm change, but the real success of these mechanisms will come from their capacity to generate satisfactory solutions that will progressively make them the preferred option on their own merits, beyond their obligatory nature.

                Conclusion: Between Hope and Caution

                The new regulation of the appropriate means of non-jurisdictional dispute resolution is in line with a clear international trend towards the promotion of alternatives to judicial dispute resolution. This trend responds both to practical needs – decongesting the courts, reducing costs – and to a philosophy that values the protagonism of the parties in the management of their own conflicts.

                In this sense, Spanish legislation joins a global movement that has shown positive results in many jurisdictions. However, only time will tell whether the legislative technique used, especially the commitment to mandatory nature as a procedural requirement, is the most appropriate to achieve the true purpose of encouraging agreement in order to avoid litigation.

                The success of this reform will depend not only on its regulatory design, but also on factors such as adequate training of the professionals involved, public awareness of the advantages of these alternative routes, and the system’s capacity to evaluate and adapt according to the results obtained.

                In short, we are facing an ambitious and necessary reform, which opens up a hopeful horizon but which will have to overcome important challenges in order to consolidate itself as a true paradigm shift in the administration of justice in Spain. The true criterion of success will not be the number of negotiation attempts made, but the quality of the agreements reached and the satisfaction of citizens with a more participatory, efficient justice system adapted to their real needs.

                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.

                Generative artificial intelligence (generative AI) is a variant of artificial intelligence aimed at creating models capable of generating new and original content. These models are trained to learn patterns and features from data sets, and can then generate similar or even completely new content based on those learned patterns.

                A specific type of generative model is the generative neural network (GAN). GANs consist of two neural networks, one generative and one discriminative, working together. The generative network creates new content, while the discriminative network evaluates the authenticity of that content. The generative model can produce increasingly realistic results as these networks compete and improve.

                Generative AI has applications in various areas, such as art creation, creative text generation, speech synthesis, and so on. It is also used in fields such as image enhancement and machine translation. This approach has advanced significantly in recent years and continues to be an active area of research in artificial intelligence.

                Generative artificial intelligence applied to the legal sector involves using generative models to assist in various tasks and processes related to legal practice.

                Positive aspects of generative AI applied to the legal sector

                The integration of generative artificial intelligence in the legal field has emerged as a transformative catalyst, providing a number of significant benefits that positively impact the efficiency, accuracy, and accessibility of legal services. Throughout this evolution, several aspects highlight the substantial contribution of artificial intelligence to legal practice.

                Some of these benefits are highlighted below:

                Legal Document Drafting

                Generative AI can be used to draft legal documents, contracts and other legal texts. It can generate content based on patterns learned from large sets of legal data, facilitating the creation of standard documents and reducing the workload for legal professionals, also ensuring consistency and accuracy in legal drafting, reducing risks associated with possible human errors.

                Analysis of large volumes of data

                The ability to process information at a speed and scale that surpasses human abilities enables the identification of patterns, trends and precedents with greater speed and accuracy. This advanced analysis helps strengthen legal arguments, improve strategic decision-making and provide clients with stronger legal representation.

                Improved legal research

                Generative artificial intelligence systems can perform faster and more accurate searches of legal databases, law libraries and case law. This streamlines the legal research process, providing professionals with access to relevant information more efficiently.

                Legal Argument Generation

                Generative IA can help generate sound legal arguments. By understanding case law and legal principles, it can help lawyers build better arguments and develop strategies for specific cases.

                Automated Legal Advice

                Automated legal advice systems can be developed that use generative AI to answer common legal questions and provide basic guidance. This could be useful for simpler legal queries and to improve access to legal information.

                Personalized legal advice

                Artificial intelligence can analyze case-specific data and provide personalized legal advice. This helps legal professionals make more informed and strategic decisions by considering situation-specific factors.

                Legal Scenario Simulation

                Generative AI can simulate legal scenarios to help lawyers evaluate possible outcomes and risks in particular cases. This could be useful in strategic decision-making and legal planning.

                Automation of repetitive tasks

                The ability of artificial intelligence systems to take on the workload related to standard document review and basic information management allows legal professionals to focus on more complex and strategic issues. This automation not only saves time but also decreases the likelihood of human error, thus strengthening the overall quality of legal work.

                Optimization of internal processes

                Artificial intelligence can significantly improve efficiency in case management, meeting scheduling, and other day-to-day operations in law firms. This optimization not only streamlines internal practices but also enables more efficient resource allocation and more effective workload management.

                In short, the application of generative artificial intelligence in the legal sector transcends the mere automation of tasks, encompassing fundamental aspects that improve the quality and efficiency of legal services. From the automation of routine tasks to advanced data analysis and document generation, artificial intelligence is a powerful ally that drives positive developments in legal practice. This advancement not only improves the internal efficiency of law firms, but also strengthens the ability of legal professionals to provide accurate and strategic advice in an ever-changing legal environment.

                While generative AI offers many possibilities, its implementation in the legal sector must be approached cautiously to ensure accuracy, ethics, and compliance with applicable laws and regulations. Human intervention and legal oversight remain essential to ensure quality and accountability in using these technologies.

                Negative aspects of the application of generative AI to the legal sector

                While promising, the integration of generative artificial intelligence in the legal sector poses a number of challenges and negative aspects that require attention and careful consideration. Despite significant advances in automation and process improvement, addressing the following adverse aspects is crucial to ensure an ethical and effective implementation.

                Lack of human discernment

                Although artificial intelligence systems can analyze data at impressive speed, they lack human understanding and sensitivity. Interpreting legal nuances, understanding emotional contexts, and making decisions based on ethics are skills intrinsic to legal professionals. Over-reliance on technology in interpreting complex situations could result in inadequate or insensitive assessments.

                Risk of algorithmic bias

                Algorithms used in generative artificial intelligence are trained on historical data, and if that data contains cultural, ethnic, or gender biases, the results generated may reflect and perpetuate those biases. This raises ethical and legal concerns, as automated decisions could be inherently discriminatory, affecting fairness and justice in the legal system.

                Data security and privacy

                The implementation of artificial intelligence in the legal field involves handling highly confidential information. Systems’ vulnerability to cyber attacks could expose sensitive data, compromising the confidentiality and integrity of the legal system. Good protection against cyber threats is essential to maintaining confidence in these technologies.

                Job displacement

                As artificial intelligence takes over routine and repetitive tasks, there is a risk that certain jobs in the legal sector will be affected. This raises questions about role restructuring and the need for legal professionals to acquire new skills to adapt to a changing work environment. The ethics of this displacement and measures to mitigate its impacts must be carefully addressed.

                Ethical complexity in decision making

                Generative artificial intelligence algorithms often operate opaquely, meaning that the logic behind their decisions can be difficult to understand or explain. This raises ethical questions about accountability and transparency in legal decision-making, especially in critical cases where a clear explanation of decisions is critical.

                Costs associated with implementation

                From initial development to ongoing training and system maintenance, law firms, especially smaller ones, can face significant financial challenges. This raises the issue of equity in access to these technologies and the need to seek solutions that do not perpetuate inequities in the legal system.

                Cultural resistance and adaptation

                Cultural resistance and adaptation are factors that should not be overlooked. The introduction of generative artificial intelligence may encounter resistance among legal professionals who may be reluctant to rely on emerging technologies. Organizational culture and acceptance of these tools may require time and effort for successful implementation. Training and effective communication are essential to overcome these barriers.

                In conclusion, the application of generative artificial intelligence in the legal sector, while offering significant benefits, is not without its challenges. Addressing the lack of human discernment, mitigating the risk of algorithmic bias, ensuring data security and privacy, managing labor displacement, addressing ethical complexity in decision making, and managing associated costs are imperative for ethical and effective implementation. Careful thought and appropriate regulation are essential to harness the benefits of artificial intelligence without compromising fundamental principles of fairness and justice in the legal system.

                The Commercial Court No. 17 of Madrid has ruled in the SuperLiga case following the guidelines set by the CJEU in its decision of December 21 last year.

                The lawsuit was filed by ESCL, an entity formed by Real Madrid and other soccer clubs to promote the SuperLiga, most of which abandoned the project due to pressure from fans and their governments against FIFA and UEFA, with RFEF and La Liga voluntarily joining the defendants.

                As usually happens with elections, but not with sentences, everyone, plaintiffs and defendants, has shown their satisfaction with this ruling, which is not yet final, as it can be appealed before the Provincial Court of Madrid.

                In brief, the proceedings involved whether the FIFA/UEFA regulations on the organization and authorization of soccer competitions and the management of the rights deriving from such competitions were in accordance with Community competition law, articles 101 and 102 of the TFEU.

                The CJEU judgment of last December had already ruled that the regulatory rules of FIFA and UEFA relating to prior authorization and participation, which give these entities the power to prevent any competing company from accessing the market, constitute an abuse of a dominant position and infringe the provisions of Articles 101 and 102 TFEU, mainly because they are not accompanied by certain limits and controls guaranteeing transparency and objectivity in the decision not to authorize such international competitions, which allow the risk of abuse of a dominant position to be excluded.

                Likewise, the Court of Justice, using the same arguments and about the exploitation rights deriving from sporting competitions, states that the FIFA and UEFA rules are contrary to the provisions of Articles 101 and 102 TFEU, since they attribute to themselves exclusive responsibility for the marketing of the rights in question.

                Following the guidelines set by the CJEU judgment, the judgment of Madrid Commercial Court No. 17 partially upheld the lawsuit filed by ESLC against UEFA and FIFA. It declared that both organizations have abused their dominant position and are preventing free competition in the market by granting themselves the discretionary power to prohibit participation in alternative competitions and impose unjustified and disproportionate restrictions, conduct that infringes Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

                The ruling condemns FIFA and UEFA to cease the anticompetitive conduct sanctioned and prohibits them from repeating them in the future. It also condemns them to immediately remove all the effects of the anticompetitive actions that occurred before or during the duration of the lawsuit, which began on April 18, 2021, when ESLC announced the launch of the SupeLiga.

                Finally, the judgment states that the content of the declarations issued by FIFA, UEFA and other entities (including the federations and leagues of England, Italy and Spain, some of whose clubs were part of the project) on April 18, 2021 (referred to in the lawsuit as the ‘Declaration’) in relation to the pan-European international competition project, also infringes Articles 101 and 102 TFEU.

                It should be noted that the judgment expressly states that “inasmuch as the SuperLiga in the terms initially set forth in the lawsuit, i.e. in accordance with the initial project has been abandoned and discarded by the promoters themselves, the motions in relation thereto must likewise lapse; it is not possible to impose a prohibition or restriction in the abstract, i.e. to impose a prohibition in the future of any other project or modification of the one already presented”.

                Based on this argument, the Judgment rejects the requests included in section f) of the lawsuit which, in summary, requested that FIFA and UEFA be ordered to refrain from any conduct, measure, or action or issue any statement that prevents or hinders in any way the preparation of the SuperLiga; and the commercial judge concludes by stating in this regard that the purpose of these proceedings is not “the authorization of any competition, but to lay the foundations to channel a system of free competition for the organization of soccer competitions”.

                Thereafter, everyone is happy with the result; La Liga issued a statement stressing that the ruling does not endorse a project which, moreover, according to the same ruling, has been abandoned by its promoters. UEFA says that it is pleased to note that the judge has given a good and valid system of prior authorization for third-party competitions to be approved in accordance with UEFA’s authorization rules and has recognized the undoubted benefits of these rules for the soccer sporting system, concluding that “the judgment does not give third parties the right to develop competitions without authorization and does not refer to any future project or to any modified version of an existing project”.

                The plaintiffs, too, are happy and content to proclaim that UEFA’s statutes and the aggressive measures taken to protect its monopoly have stifled innovation for decades. Clubs should not have to fear threats of sanctions simply for having ideas and having conversations. The era of monopoly is definitely over.

                Rarely does one find that a judgment leaves all the litigants so happy and content, but that seems to be the case here. Or at least that is what all of them have been interested in communicating, when the harsh reality is, on the one hand, that the SuperLiga project as it was structured when the lawsuit started and FIFA/UEFA reacted furiously, is dead and buried, and on the other hand, that the happy world in which FIFA and UEFA regulated soccer and competitions as a private preserve, considered themselves immune and alien to ordinary justice and shared the money generated without being accountable to the Courts of Justice and threatened to expel or expel the rebellious spirits, has come to an end.

                Commercial agents have specific regulations with rights and obligations that are “mandatory”: those who sign an agency contract cannot derogate from them. Answering whether an influencer can be an agent is essential because, if he or she is an agent, the agent regulations will apply to him or her.

                Let’s take it one step at a time. The influencer we will talk about is the person who, with their actions and comments (blogs, social media accounts, videos, events, or a bit of everything), talks to their followers about the advantages of certain products or services identified with a certain third-party brand. In exchange for this, the influencer is paid.[1]

                A commercial agent is someone who promotes the contracting of others’ products or services, does so in a stable way, and gets paid in return. He or she can also conclude the contract, but this is not essential.

                The law imposes certain obligations and guarantees rights to those signing an agency contract. If the influencer is considered an “agent”, he or she should also have them. And there are several of them: for example, the duration, the notice to be given to terminate the contract, the obligations of the parties… And the most relevant, the right of the agent to receive compensation at the end of the relationship for the clientele that has been generated. If an influencer is an agent, he would also have this right.

                How can an influencer be assessed as an agent? For that we must analyse two things: (a) the contract (and be careful because there is a contract, even if it is not written) and (b) how the parties have behaved.

                The elements that, in my opinion, are most relevant to conclude that an influencer is an agent would be the following:

                 

                a) the influencer promotes the contracting of services or the purchase of products and does so independently.

                The contract will indicate what the influencer must do. It will be clearer to consider him as an agent if his comments encourage contracting: for example, if they include a link to the manufacturer’s website, if he offers a discount code, if he allows orders to be placed with him. And if he does so as an independent “professional”, and not as an employee (with a timetable, means, instructions).

                It may be more difficult to consider him as an agent if he limits himself to talking about the benefits of the product or service, appearing in advertising as a brand image, and using a certain product, and speaking well of it. The important thing, in my opinion, is to examine whether the influencer’s activity is aimed at getting people to buy the product he or she is talking about, or whether what he or she is doing is more generic persuasion (appearing in advertising, lending his or her image to a product, carrying out demonstrations of its use), or even whether he or she is only seeking to promote himself or herself as a vehicle for general information (for example, influencers who make comparisons of products without trying to get people to buy one or the other). In the first case (trying to get people to buy the product) it would be easier to consider it as an “agent”, and less so in the other examples.

                 

                b) this “promotion” is done in a continuous or stable manner.

                Be careful because this continuity or stability does not mean that the contract has to be of indefinite duration. Rather, it is the opposite of a sporadic relationship. A one-year contract may be sufficient, while several unconnected interventions, even if they last longer, may not be sufficient.

                In this case, influencers who make occasional comments, who intervene with isolated actions, who limit themselves to making comparisons without promoting the purchase of one or the other, and even if all this leads to sales, even if their comments are frequent and even if they can have a great influence on the behavior of their followers, would be excluded as agents.

                 

                c) they receive remuneration for their activity.

                An influencer who is remunerated based on sales (e.g., by promoting a discount code, a specific link, or referring to your website for orders) can more easily be considered as an agent. But also, if he or she only receives a fixed amount for their promotion. On the other hand, influencers who do not receive any remuneration from the brand (e.g. someone who talks about the benefits of a product in comparison with others, but without linking it to its promotion) would be excluded.

                 

                Conclusion

                The borderline between what qualifies an influencer as an agent and what does not can be very thin, especially because contracts are often not unambiguous and sometimes their services are multiple. The most important thing is to carefully analyse the contract and the parties’ behaviour.

                An influencer could be considered a commercial agent to the extent that his or her activity promotes the contracting of the product (not simply if he or she carries out informative or image work), that it is done on a stable basis (and not merely anecdotal or sporadic) and in exchange for remuneration.

                To assess the specific situation, it is essential to analyse the contract (if it is written, this is easier) and the parties’ behaviour.

                In short, to draw up a contract with an influencer or, if it has already been signed, but you want to conclude it, you will have to pay attention to these elements. As an influencer you may have a strong interest in being considered an agent at the end of the contract and thus be entitled to compensation, while as employer you will prefer the opposite.

                FINAL NOTE. In Spain and at the date of this comment (9 June 2024) I am not aware of any judgement dealing with this issue. My proposal is based on my experience of more than 30 years advising and litigating on agency contracts. On the other hand, and as far as I know, there is at least one judgment in Rome (Italy) dealing with the matter: Tribunale di Roma; Sezione Lavoro 4º, St. 2615 of 4 March 2024; R. G. n. 38445/2022.

                Ignacio Alonso

                Practice areas

                • Agency
                • Corporate
                • Distribution
                • Franchising
                Contact Ignacio

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                  Spain – Is it possible to advance payment of customer indemnity in agency contracts?

                  5 March 2024

                  • Spain
                  • Agency

                  The increase in so-called cybercrime in recent years is so significant that it requires strong legislative and judicial responses. Losses from online fraud in Europe exceed $100 billion, according to Nasdaq Ventures, of which $5 billion correspond to Spain.

                  In Spain, 192,375 cases of computer fraud were reported in 2019, but by 2023 this figure had risen to 427,448. According to the latest official data available, computer fraud accounts for 90.4% of all cybercrimes, with growth of 378% between 2016 and 2023.

                  There are many different types of computer fraud, and they are named in English (after all, the lingua franca of our time), including, among other ingenious methods used by skilled fraudsters, those with curious and amusing names (except for those who suffer from them) such as phishing, pharming, juice jacking, tabnabbing, bluesnarfing, catfishing, spoofing, vishing, smishing, whaling, carding, and the one we are interested in today, man in the middle (MITM).

                  Man in the Middle scam: how it works

                  This MITM fraud involves intercepting communications between two devices connected to a network, allowing the attacker to alter and divert messages exchanged between users. The fraudster intercepts a communication in which one user requests a payment from another and then modifies the IBAN of the bank account to which the transfer should be made in order to obtain the money. The process generally unfolds as follows:

                  • Without the company noticing, an attacker intercepts and manipulates an email, changing the IBAN number of the account to which the payment should be made.
                  • The cybercriminal impersonates the supplier, sending the message from an email address that is almost identical to the original, but with a slight alteration that is almost imperceptible.
                  • The receiving company, trusting the authenticity of the message, makes the transfer to the fraudulent account.

                   

                  This results in a transfer of assets to the detriment of the person ordering the transfer and in favor of the cyber thief, so that when the person ordering the transfer notices the error, their first reaction is to try to contact the receiving bank in the hope that the funds can be blocked in time. However, in most cases, the cybercriminal has been quicker: the money has already been transferred to another account or withdrawn, leaving little room for maneuvering, except for the initiation of legal proceedings, which we will discuss below.

                  The immediate question is what responsibility the bank that has received the transfer order from the deceived user and credits the cyber fraudster’s account with the amount in question has in cases where the payer identifies not only the (fraudulent) IBAN but also the name of the beneficiary of the payment order, which obviously does not match the name of the holder of the bank account receiving the funds.

                  The common-sense answer would be that the bank receiving the transfer should confirm that the holder of the account to which the funds are credited and the individual or entity identified as the beneficiary in the transfer order match; if this is not the case, it should suspend the payment and request clarification from the payer. However, this is not the case in light of EU legislation and its transposition into Spanish law, as we will see below.

                  Until October 9, the European banking system operated under the premise that the validity of a transfer was based exclusively on the correctness of the IBAN. In other words, if the account number was correct, the transaction was considered valid, even if the beneficiary’s name did not match. This practice has led to numerous cases of fraud, unintentional errors, and loss of funds, especially in instant transfers, where speed can compromise security.

                  The most reasonable option for the defrauded payer to recover their money is to sue the bank receiving the payment order (with which they have no contractual relationship) for non-contractual liability under Article 1124 of the Civil Code; in fact, criminal proceedings against the account holder, who is usually referred to in slang as a “mule,” do not usually have a satisfactory outcome, both because the bird usually flies away and because of its lack of solvency.

                  The case law of the Provincial Courts has been divided between rulings that strictly and faithfully applied Article 59 of Royal Decree-Law 19/2018 of November 23, on payment services and other urgent financial measures, dismissing the claims of those defrauded, and others in which arguments were sought under the premise of lack of diligence to condemn the bank to compensate the payer.

                  This has led to the establishment of quasi-objective liability for banks in relation to digital fraud, imposing a higher standard of diligence on them and transferring the risk inherent in online banking to them, except in cases of willful misconduct or gross negligence on the part of the customer. This line of reasoning, which has been developed from lower court rulings (AP Madrid 178/2015; AP Alicante 107/2018; AP Valencia 212/2021) to the Supreme Court itself (STS 571/2025, among others), is in line with the idea that it is up to the bank to prove that its systems were secure, up to date, and sufficient to prevent the crime from being committed.

                  In this context, the concept of bonus argentarius takes on renewed relevance. This is a principle that was included in Law 57/68 to protect home buyers in the real estate sector, but the Supreme Court has ruled on several occasions that it can also be applied to other financial investments. This means that, in the event of losses due to negligence on the part of the financial institution, the customer can file a claim under Law 57/68 and hold the institution liable.

                  The bonus argentarius is based on the presumption of fault on the part of the financial institution, which means that even if the customer has no concrete evidence of negligence, it is assumed due to the duty of care that the institution must exercise in the management of investments.

                  Based on this principle, the diligence required of financial professionals is not that of the average trader or pater familias, but that of a qualified expert who assumes the obligation to protect the funds entrusted to them by implementing “necessary and renewable” security mechanisms. This implies not only maintaining basic technical measures for enhanced authentication, but also proactively adopting internationally recognized anti-fraud solutions, such as name-IBAN verification (Confirmation of Payee or IBAN-Naam Check), which have proven effective in comparable jurisdictions.

                  In line with that doctrine and case law, it can be said that the omission of beneficiary verification measures today constitutes a breach of the contractual duty of diligence and good faith (Articles 1104 and 1258 of the Civil Code), giving rise to civil liability for the damage caused, such that MITM fraud cannot be considered a residual risk attributable to the customer, but rather a systemic security failure attributable to the financial institution, as the designer and custodian of the electronic payment channel.

                  In this state of affairs, the Supreme Court, in its recent ruling of March 27, 2025, opted for the alternative of strict application of Article 59, arguing that “if the payment service user provides additional information to that required (specification of the information or unique identifier that the payment service user must provide for the correct initiation or execution of a payment order), the payment service provider shall only be liable for the execution of payment transactions in accordance with the unique identifier provided by the payment service user… and that the liability of the payment service provider, both at Community and national level, is such that it fulfills its obligation by executing the payment transaction in accordance with the unique identifier, without the addition of further information implying a higher standard of diligence

                  It is true that, in conclusion, the Supreme Court offered a glimmer of hope to defrauded users when it stated that “the interpretation set out above does not exempt the payment service provider from liability when circumstances, unrelated to the provision of additional data, are found to have contributed to the defective execution of the transaction, either because an additional requirement or demand (e.g., the identification of the beneficiary), or because the payment service provider of the payer or the beneficiary had taken advantage of the error for their own benefit, or because, once the existence of the error had been communicated without delay, one or the other had not taken the measures required by the diligence of an expert trader to allow retroaction or, where appropriate, to minimize the damage.”

                  Regulation (EU) 2024/886: a paradigm shift

                  And in this scenario fraught with doubts, Regulation (EU) 2024/886 bursts onto the scene, representing a 180-degree turn and a paradigm shift: the new European Regulation, approved in April 2024 and coming into force on October 9, 2025, establishes a clear obligation for banks: they must verify that the name of the beneficiary provided by the payer matches the IBAN holder before executing an immediate transfer in euros.

                  The new features of this regulation are

                  • mandatory application to all instant transfers within the SEPA area,
                  • the new name matching system: if there is a discrepancy between the name and the IBAN, the bank must alert the customer before executing the transaction, and
                  • increased liability for financial institutions in the event of fraud or error due to lack of verification.

                  In short, the aim is to reduce the risk of fraud, protect consumers, and increase confidence in digital payments.

                  This means that Law 19/2018, which regulates payment services in Spain and does not require verification of the beneficiary’s identity, is now outdated, underscoring the need for a national legislative review to harmonize the legal framework with European requirements.

                  In conclusion, the obligation to verify the beneficiary of transfers represents a significant step forward in consumer protection and the fight against financial fraud. Regulation (EU) 2024/886 marks a turning point in banking operations, imposing an active responsibility on institutions to ensure the authenticity of transfers.

                  In any case, the question remains open regarding the solution to MITM frauds executed before October 9, 2025, and the responsibility of the banking institution. For the time being, the aforementioned Supreme Court ruling of March 27 closes the door to claims against banks, but it cannot be ruled out that the entry into force of Regulation 2024/886 and the paradigm shift will lead to a rethinking of the Supreme Court’s position in line with the quasi-objective liability that lower courts have been maintaining. We will have to wait and see, but such a change would be a great success for bank users who have suffered from this MITM fraud and all other types of cyber fraud.

                  It is quite common for business relationships with agents or distributors to last for years without any signed documents. And be careful, because we know that a contract can exist even verbally.

                  The absence of a written contract will add difficulties in the event of a possible claim, so what you do between the decision to terminate, and the moment of the claim is very important. Remember: ‘anything you write will be used against you’.

                  The decision to terminate a business relationship is a very delicate moment to which, for some reason, solicitors are not invited. Here are some examples (all real) in which companies or employees with the best of intentions wrote to the agent/distributor. All of them were subsequently very damaging to the company:

                  Saying ‘We are terminating our business relationship’ when the strategy will be to argue that no such business relationship exists, but rather that there are separate and linked contracts (e.g., supply rather than ongoing distribution contract; very significant compensation consequences).

                  ‘You no longer represent our company’, which may be evidence that you did so before.

                  ‘As of day X, you may no longer act on behalf of our company,’ which would prove that you were previously able to act on its behalf.

                  ‘You may not attend the X trade fair on our behalf.’ A way of confirming that the agent/distributor’s responsibilities included participating in trade fairs and probably accrediting the customers obtained.

                  ‘The sales you promoted have been significantly reduced in year N.’ When there is no written contract or other form of documentation, imputing a breach of an obligation that is not clear can be counterproductive.

                  Saying ‘You are not actively promoting our products’ and then adding: ‘We urge you to stop promoting the sale of our products’.

                  ‘You are no longer our exclusive representative’, which proves a type of relationship (representation/agent) and a tacit or express agreement (‘exclusivity’).

                  ‘We have appointed another representative in your area’, which shows that the agent/distributor had an assigned area and was “representing”.

                  ‘From this moment on, orders will be handled by X’, which also confirms a type of relationship.

                   

                  In summary: from the moment the company considers terminating a commercial relationship, especially when it is not in writing and before sending any letter, it is advisable to think carefully about the strategy in case of a possible claim. This is the best time to seek advice and avoid surprises. Any communication that is not in line with this strategy designed from the outset can only lead to confusion and problems.

                  In Spain, companies can be incorporated by legal entities or persons of any nationality, residing in Spain or abroad.

                  Incorporation by a natural person

                  The foreign citizen who intends to incorporate a Spanish company, and is not a resident in Spain, must obtain a Foreigner Identification Number/ Tax Identification Number (NIE/NIF) prior to the incorporation of the company before a Notary Public.

                  To obtain a NIE/NIF, he/she must, alternatively: (i) appear before the Spanish Consulate in his/her country of residence, or (ii) apply for it before the Immigration Office/Police Station in Spain; in both cases personally or through a representative. The representation will be accredited with sufficient power of attorney, in which it is expressly stated that the representative is authorised to present the application to obtain the NIE.

                  Once the NIE has been obtained, it must be communicated to the Tax Agency by presenting a Form 030, a photocopy of the passport and a photocopy of the NIE. Once the NIE has been communicated to the Tax Agency, the foreign citizen can now appear before a Notary Public to notarise the Deed of Incorporation of the company, presenting the following documents:

                  • The bylaws, with the minimum content required by Spanish law (Model Bylaws of a Public Limited Company, Model Bylaws of a Private Limited Company);
                  • The negative certificate of denomination issued by the Central Mercantile Registry (reservation of name for the company);
                  • In the case of monetary contributions, the deposit slip issued by the bank accrediting the disbursement of the initial contributions (or, if applicable, the corresponding amount in cash) is required. In the case of Limited Companies, the notary must provide bank proof of payment of a minimum of 3,000 euros, payment to be made directly by the individual who will be the owner of the company’s shares.
                  • If the foreign citizen planning to incorporate the company does not appear personally before the Notary, they may do so through a representative. The original power of attorney granted to the representative, duly legalized (by apostille or document legalization) and accompanied by sworn translation, must be provided.
                  • The original identification documents (national identity card or passport and NIE/TIE) of the persons who constitute the new company;
                  • The foreign investment declaration duly completed. Although merely informative, this mandatory document must be filed with the Foreign Investment Registry of the Ministry of Economy and Competitiveness within one month of the New Company’s incorporation. The notary can take care of it if requested (Form D-1A).

                  Incorporation by a legal entity

                  The foreign company that plans to incorporate a Spanish company must obtain a Tax Identification Number before the incorporation, in front of a Notary Public, by submitting an application form (EX15).

                  This application for a NIF must be signed by a legal representative of the company who, in the event of not being a legal resident in Spain (Spanish or foreigner with a residence permit), must obtain a NIE as a non-resident beforehand.

                  If a foreign company grants power of attorney to a legal resident in Spain to obtain the company’s NIF, the Tax Agency requires that the grantor of the power of attorney also have an NIE as a non-resident. If he does not have a NIE, the Tax Administration can grant him a provisional NIE by means of form 030, together with a photocopy of his passport.

                  Once empowered, this legal representative of the foreign company must sign the application for the census form (form 036) and this application must be presented, in person, at the Tax Agency office, enclosing:

                  • Census declaration (Form 036) signed by the person empowered by the foreign company requesting the NIF, and
                  • Power of attorney granted by the authorized representative of the non-resident entity, duly notarized and legalized (see “Legalization and translation of documents”), in which a legal resident person is appointed as representative of the non-resident entity for the purpose of obtaining the NIF.

                  Once the foreign company is registered with the Tax Agency, it can proceed with the incorporation.

                  Introduction: A Paradigm Shift in Conflict Resolution

                  The approval of Organic Law 1/2025, of January 2, on measures for the efficiency of the Public Justice Service, marks a turning point in the Spanish judicial system. This legislation is not limited to introducing procedural changes, but reflects a profound transformation in the very concept of justice. The legislator has made a firm commitment to promoting alternatives to the judicial resolution of disputes, making prior negotiation a central element of the system.

                  The saturation of the courts, the costs associated with judicial proceedings, and the search for more satisfactory solutions for the parties have prompted this reform, which places the so-called “appropriate means of non-jurisdictional dispute resolution” as the cornerstone of a new justice model oriented towards dialogue and agreement.

                  The philosophy behind alternative means of dispute resolution

                  Beyond the decongestion of the courts, this reform responds to a philosophy that understands that not all conflicts necessarily require a judicial response. Alternative means of dispute resolution are based on the premise that many conflicts can find more satisfactory and lasting solutions, adapted to the needs and interests of the parties, when they actively participate in their construction.

                  Organic Law 1/2025 defines these means as “any type of negotiating activity, recognized in this or other laws, state or autonomous, to which the parties to a conflict resort in good faith with the aim of finding an extrajudicial solution to it, either by themselves or with the intervention of a neutral third party”. This broad and flexible definition is intended to cover various forms of negotiation whose common denominator is the protagonism of the parties in the resolution of their own disputes.

                  A range of possibilities: Diversity of mechanisms for diversity of conflicts

                  One of the most noteworthy aspects of the new regulation is that it does not rely on a single model of alternative dispute resolution but recognizes the diversity of situations and the need to offer different tools adapted to each particular case.

                  Mediation, already consolidated in our legal system through Law 5/2012, maintains its relevance as the preferred method, but other modalities such as conciliation in its various variants (notarial, registry, before a lawyer of the Administration of Justice or judicial), the opinion of independent experts, confidential binding offers, or the novel process of collaborative law are added to it.

                  This plurality of mechanisms reflects the complexity of contemporary legal relationships and the need to provide tailored responses to each type of conflict. Resolving a neighborhood dispute is not the same as resolving a complex business dispute, and the legislator has been aware that “one size fits all” would not be effective for the diversity of situations that may arise.

                  The controversial commitment to enforceability: The requirement of procedural validity

                  Undoubtedly, the most innovative -and probably the most controversial- aspect of the new regulation is the configuration of these means as a mandatory prerequisite for resorting to judicial proceedings in certain areas. This decision represents a qualitative leap with respect to the previous regulation, which mainly favored the voluntary nature of these mechanisms.

                  From the entry into force of Organic Law 1/2025, April 3, 2025, the claim in the civil jurisdictional order will not be admitted if it is not justified that the resolution of the conflict has been previously attempted by any of the recognized alternative ways. Not only that, but also the identity between the object of the previous negotiation and the object of the litigation to be initiated must be established.

                  This mandatory nature has been the subject of intense debate. Its advocates argue that it is necessary to promote cultural change in a traditionally litigious society, while its detractors warn of the risk of turning these mechanisms into mere formalities that distort their true purpose.

                  The truth is that the legislator has tried to find a balance, excluding from this obligation certain particularly sensitive matters or those which, by their nature, require an immediate judicial response. Thus, issues such as the judicial protection of fundamental rights, measures for the protection of minors, or the request for precautionary measures, among others, are exempted from the requirement of prior negotiation.

                  The guiding principles: Autonomy and confidentiality as pillars of the system

                  The effectiveness of alternative dispute resolution rests mainly on two fundamental principles: the autonomy of the parties and the confidentiality of the process.

                  The principle of private autonomy recognizes that the parties themselves best know their interests and needs and are, therefore, in the best position to find solutions adapted to their situation. The law establishes that the parties are free to settle, if they respect the law, good faith, and public policy. This freedom is essential for the solutions reached to be truly satisfactory and lasting.

                  The principle of confidentiality is crucial to creating a climate of trust that allows the parties to express themselves freely during the negotiation process. The law establishes that the information and documentation disclosed during the negotiation must be kept confidential, with very specific exceptions, such as express waivers by the parties, court orders in criminal matters, or reasons of public order.

                  This duty of confidentiality extends to all participants in the process: the parties, their lawyers, and, where appropriate, the neutral third party involved. The aim is to ensure that what is said or proposed during the negotiation cannot be used later in a possible judicial process, thus promoting a sincere and constructive dialogue.

                  The Negotiation Process: Relevant Procedural Aspects

                  The regulation of the procedural aspects of the different means of dispute resolution also reflects the legislator’s desire to combine the necessary flexibility with the minimum guarantees required.

                  As regards standing, the initiative to resort to these mechanisms may come from either party, from both by mutual agreement, or even from a judicial referral. This recognizes both the parties’ autonomy and the possibility that the judicial system itself may encourage the use of these alternative channels.

                  Regarding the involvement of professionals, the law generally prefers a non-mandatory approach to legal assistance, except in specific situations like the preparation of binding offers (with exceptions for smaller amounts). This flexibility aims to enhance access to these mechanisms; however, the complexity of many legal disputes often makes it wise to seek professional guidance.

                  A particularly relevant aspect is the effect that the request for these mechanisms has on the statute of limitations and expiration periods. The law establishes that such a request interrupts the statute of limitations or suspends the expiration of actions from the date of communication to the other party, thus avoiding the attempt of an amicable solution that may prejudice the rights of the party that promotes it.

                  In terms of form, the preferred method is face-to-face, although the use of telematic means is permitted by agreement of the parties or in the case of claims for amounts of less than 600 euros. This flexibility is particularly appropriate in a context of increasing digitalization of legal relations.

                  Specific Modalities: Diversity of mechanisms for diversity of conflicts

                  Among the different modalities recognized by the law, it is worthwhile to focus on some that present particularly novel or relevant characteristics.

                  Private conciliation involves the intervention of a person with technical or legal expertise related to the dispute’s subject matter. The law requires this person to be registered in a recognized professional association or in a register of mediators and to act impartially and confidentially. This mechanism takes advantage of the specialized knowledge of certain professionals to facilitate agreement in technically complex matters.

                  The confidential binding offer is a particularly interesting mechanism for certain types of disputes. One of the parties makes an offer that is binding on it in the event of acceptance by the other party. The law requires that the identity of the offeror, the actual receipt by the other party, and the detailed content of the offer be recorded. This instrument can be particularly useful in financial claims, where the main obstacle to settlement is often the amount.

                  The independent expert opinion consists of commissioning an opinion from an expert in the subject matter of the dispute. Unlike other mechanisms, this opinion is not binding, but may serve as a basis for agreement if the parties accept it, or at least to clarify the technical aspects of the dispute. Following the issuance of the opinion, the parties may accept it as an agreement, propose improvements or reject it, in which case the procedural requirement is deemed to be fulfilled.

                  Finally, the collaborative law process represents perhaps the most innovative aspect of the new regulation. It is a structured negotiation in which the parties, assisted by their respective lawyers, work together to reach a satisfactory solution, being able to integrate other professionals (psychologists, economists, etc.) when the complexity of the case requires it. At the end, minutes are drawn up with the participants, the sessions held and the agreements reached.

                  The challenge of implementation: From theory to practice

                  The real effectiveness of this new system will depend largely on how it is implemented in practice. It is not enough to make it compulsory to attempt out-of-court settlement; this attempt must be genuine and not become a mere formality.

                  In this regard, the law requires that the negotiation attempt be “real and credible; it cannot be fictitious.” To this end, it establishes documentation requirements that vary depending on whether or not a neutral third party is involved but always include a responsible statement that the parties have intervened in good faith in the process.

                  Likewise, the law regulates in detail when the negotiation process is understood to be concluded, whether it concludes with or without an agreement. In the event of an agreement, it must be formalized by identifying the parties and, if applicable, their lawyers and the neutral third party, indicating the place and date, as well as the obligations assumed by each party.

                  The possibility of converting the agreement into a public deed to convert it into an enforceable title reinforces its value and facilitates its compliance, avoiding the possibility of non-compliance with the agreement, forcing the initiation of a declaratory judicial proceeding.

                  A horizon to be explored: Perspectives and challenges

                  Organic Law 1/2025 represents a turning point in the conception of justice in Spain, bringing us closer to models already consolidated in other countries with a long tradition in alternative means of conflict resolution. The United States, Canada and the Nordic countries have been using these mechanisms for decades, with generally positive results in terms of user satisfaction and decongestion of the courts.

                  However, each legal system has its particularities, and the success of these mechanisms depends not only on their legal regulation but also on cultural, sociological, and organizational factors. Spanish society’s traditional litigiousness, the poor negotiating culture in certain areas, and the lack of specific training of many professionals are challenges that must be faced.

                  The commitment to obligatory nature as an initial impulse may be understandable in a context of paradigm change, but the real success of these mechanisms will come from their capacity to generate satisfactory solutions that will progressively make them the preferred option on their own merits, beyond their obligatory nature.

                  Conclusion: Between Hope and Caution

                  The new regulation of the appropriate means of non-jurisdictional dispute resolution is in line with a clear international trend towards the promotion of alternatives to judicial dispute resolution. This trend responds both to practical needs – decongesting the courts, reducing costs – and to a philosophy that values the protagonism of the parties in the management of their own conflicts.

                  In this sense, Spanish legislation joins a global movement that has shown positive results in many jurisdictions. However, only time will tell whether the legislative technique used, especially the commitment to mandatory nature as a procedural requirement, is the most appropriate to achieve the true purpose of encouraging agreement in order to avoid litigation.

                  The success of this reform will depend not only on its regulatory design, but also on factors such as adequate training of the professionals involved, public awareness of the advantages of these alternative routes, and the system’s capacity to evaluate and adapt according to the results obtained.

                  In short, we are facing an ambitious and necessary reform, which opens up a hopeful horizon but which will have to overcome important challenges in order to consolidate itself as a true paradigm shift in the administration of justice in Spain. The true criterion of success will not be the number of negotiation attempts made, but the quality of the agreements reached and the satisfaction of citizens with a more participatory, efficient justice system adapted to their real needs.

                  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.

                  Generative artificial intelligence (generative AI) is a variant of artificial intelligence aimed at creating models capable of generating new and original content. These models are trained to learn patterns and features from data sets, and can then generate similar or even completely new content based on those learned patterns.

                  A specific type of generative model is the generative neural network (GAN). GANs consist of two neural networks, one generative and one discriminative, working together. The generative network creates new content, while the discriminative network evaluates the authenticity of that content. The generative model can produce increasingly realistic results as these networks compete and improve.

                  Generative AI has applications in various areas, such as art creation, creative text generation, speech synthesis, and so on. It is also used in fields such as image enhancement and machine translation. This approach has advanced significantly in recent years and continues to be an active area of research in artificial intelligence.

                  Generative artificial intelligence applied to the legal sector involves using generative models to assist in various tasks and processes related to legal practice.

                  Positive aspects of generative AI applied to the legal sector

                  The integration of generative artificial intelligence in the legal field has emerged as a transformative catalyst, providing a number of significant benefits that positively impact the efficiency, accuracy, and accessibility of legal services. Throughout this evolution, several aspects highlight the substantial contribution of artificial intelligence to legal practice.

                  Some of these benefits are highlighted below:

                  Legal Document Drafting

                  Generative AI can be used to draft legal documents, contracts and other legal texts. It can generate content based on patterns learned from large sets of legal data, facilitating the creation of standard documents and reducing the workload for legal professionals, also ensuring consistency and accuracy in legal drafting, reducing risks associated with possible human errors.

                  Analysis of large volumes of data

                  The ability to process information at a speed and scale that surpasses human abilities enables the identification of patterns, trends and precedents with greater speed and accuracy. This advanced analysis helps strengthen legal arguments, improve strategic decision-making and provide clients with stronger legal representation.

                  Improved legal research

                  Generative artificial intelligence systems can perform faster and more accurate searches of legal databases, law libraries and case law. This streamlines the legal research process, providing professionals with access to relevant information more efficiently.

                  Legal Argument Generation

                  Generative IA can help generate sound legal arguments. By understanding case law and legal principles, it can help lawyers build better arguments and develop strategies for specific cases.

                  Automated Legal Advice

                  Automated legal advice systems can be developed that use generative AI to answer common legal questions and provide basic guidance. This could be useful for simpler legal queries and to improve access to legal information.

                  Personalized legal advice

                  Artificial intelligence can analyze case-specific data and provide personalized legal advice. This helps legal professionals make more informed and strategic decisions by considering situation-specific factors.

                  Legal Scenario Simulation

                  Generative AI can simulate legal scenarios to help lawyers evaluate possible outcomes and risks in particular cases. This could be useful in strategic decision-making and legal planning.

                  Automation of repetitive tasks

                  The ability of artificial intelligence systems to take on the workload related to standard document review and basic information management allows legal professionals to focus on more complex and strategic issues. This automation not only saves time but also decreases the likelihood of human error, thus strengthening the overall quality of legal work.

                  Optimization of internal processes

                  Artificial intelligence can significantly improve efficiency in case management, meeting scheduling, and other day-to-day operations in law firms. This optimization not only streamlines internal practices but also enables more efficient resource allocation and more effective workload management.

                  In short, the application of generative artificial intelligence in the legal sector transcends the mere automation of tasks, encompassing fundamental aspects that improve the quality and efficiency of legal services. From the automation of routine tasks to advanced data analysis and document generation, artificial intelligence is a powerful ally that drives positive developments in legal practice. This advancement not only improves the internal efficiency of law firms, but also strengthens the ability of legal professionals to provide accurate and strategic advice in an ever-changing legal environment.

                  While generative AI offers many possibilities, its implementation in the legal sector must be approached cautiously to ensure accuracy, ethics, and compliance with applicable laws and regulations. Human intervention and legal oversight remain essential to ensure quality and accountability in using these technologies.

                  Negative aspects of the application of generative AI to the legal sector

                  While promising, the integration of generative artificial intelligence in the legal sector poses a number of challenges and negative aspects that require attention and careful consideration. Despite significant advances in automation and process improvement, addressing the following adverse aspects is crucial to ensure an ethical and effective implementation.

                  Lack of human discernment

                  Although artificial intelligence systems can analyze data at impressive speed, they lack human understanding and sensitivity. Interpreting legal nuances, understanding emotional contexts, and making decisions based on ethics are skills intrinsic to legal professionals. Over-reliance on technology in interpreting complex situations could result in inadequate or insensitive assessments.

                  Risk of algorithmic bias

                  Algorithms used in generative artificial intelligence are trained on historical data, and if that data contains cultural, ethnic, or gender biases, the results generated may reflect and perpetuate those biases. This raises ethical and legal concerns, as automated decisions could be inherently discriminatory, affecting fairness and justice in the legal system.

                  Data security and privacy

                  The implementation of artificial intelligence in the legal field involves handling highly confidential information. Systems’ vulnerability to cyber attacks could expose sensitive data, compromising the confidentiality and integrity of the legal system. Good protection against cyber threats is essential to maintaining confidence in these technologies.

                  Job displacement

                  As artificial intelligence takes over routine and repetitive tasks, there is a risk that certain jobs in the legal sector will be affected. This raises questions about role restructuring and the need for legal professionals to acquire new skills to adapt to a changing work environment. The ethics of this displacement and measures to mitigate its impacts must be carefully addressed.

                  Ethical complexity in decision making

                  Generative artificial intelligence algorithms often operate opaquely, meaning that the logic behind their decisions can be difficult to understand or explain. This raises ethical questions about accountability and transparency in legal decision-making, especially in critical cases where a clear explanation of decisions is critical.

                  Costs associated with implementation

                  From initial development to ongoing training and system maintenance, law firms, especially smaller ones, can face significant financial challenges. This raises the issue of equity in access to these technologies and the need to seek solutions that do not perpetuate inequities in the legal system.

                  Cultural resistance and adaptation

                  Cultural resistance and adaptation are factors that should not be overlooked. The introduction of generative artificial intelligence may encounter resistance among legal professionals who may be reluctant to rely on emerging technologies. Organizational culture and acceptance of these tools may require time and effort for successful implementation. Training and effective communication are essential to overcome these barriers.

                  In conclusion, the application of generative artificial intelligence in the legal sector, while offering significant benefits, is not without its challenges. Addressing the lack of human discernment, mitigating the risk of algorithmic bias, ensuring data security and privacy, managing labor displacement, addressing ethical complexity in decision making, and managing associated costs are imperative for ethical and effective implementation. Careful thought and appropriate regulation are essential to harness the benefits of artificial intelligence without compromising fundamental principles of fairness and justice in the legal system.

                  The Commercial Court No. 17 of Madrid has ruled in the SuperLiga case following the guidelines set by the CJEU in its decision of December 21 last year.

                  The lawsuit was filed by ESCL, an entity formed by Real Madrid and other soccer clubs to promote the SuperLiga, most of which abandoned the project due to pressure from fans and their governments against FIFA and UEFA, with RFEF and La Liga voluntarily joining the defendants.

                  As usually happens with elections, but not with sentences, everyone, plaintiffs and defendants, has shown their satisfaction with this ruling, which is not yet final, as it can be appealed before the Provincial Court of Madrid.

                  In brief, the proceedings involved whether the FIFA/UEFA regulations on the organization and authorization of soccer competitions and the management of the rights deriving from such competitions were in accordance with Community competition law, articles 101 and 102 of the TFEU.

                  The CJEU judgment of last December had already ruled that the regulatory rules of FIFA and UEFA relating to prior authorization and participation, which give these entities the power to prevent any competing company from accessing the market, constitute an abuse of a dominant position and infringe the provisions of Articles 101 and 102 TFEU, mainly because they are not accompanied by certain limits and controls guaranteeing transparency and objectivity in the decision not to authorize such international competitions, which allow the risk of abuse of a dominant position to be excluded.

                  Likewise, the Court of Justice, using the same arguments and about the exploitation rights deriving from sporting competitions, states that the FIFA and UEFA rules are contrary to the provisions of Articles 101 and 102 TFEU, since they attribute to themselves exclusive responsibility for the marketing of the rights in question.

                  Following the guidelines set by the CJEU judgment, the judgment of Madrid Commercial Court No. 17 partially upheld the lawsuit filed by ESLC against UEFA and FIFA. It declared that both organizations have abused their dominant position and are preventing free competition in the market by granting themselves the discretionary power to prohibit participation in alternative competitions and impose unjustified and disproportionate restrictions, conduct that infringes Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

                  The ruling condemns FIFA and UEFA to cease the anticompetitive conduct sanctioned and prohibits them from repeating them in the future. It also condemns them to immediately remove all the effects of the anticompetitive actions that occurred before or during the duration of the lawsuit, which began on April 18, 2021, when ESLC announced the launch of the SupeLiga.

                  Finally, the judgment states that the content of the declarations issued by FIFA, UEFA and other entities (including the federations and leagues of England, Italy and Spain, some of whose clubs were part of the project) on April 18, 2021 (referred to in the lawsuit as the ‘Declaration’) in relation to the pan-European international competition project, also infringes Articles 101 and 102 TFEU.

                  It should be noted that the judgment expressly states that “inasmuch as the SuperLiga in the terms initially set forth in the lawsuit, i.e. in accordance with the initial project has been abandoned and discarded by the promoters themselves, the motions in relation thereto must likewise lapse; it is not possible to impose a prohibition or restriction in the abstract, i.e. to impose a prohibition in the future of any other project or modification of the one already presented”.

                  Based on this argument, the Judgment rejects the requests included in section f) of the lawsuit which, in summary, requested that FIFA and UEFA be ordered to refrain from any conduct, measure, or action or issue any statement that prevents or hinders in any way the preparation of the SuperLiga; and the commercial judge concludes by stating in this regard that the purpose of these proceedings is not “the authorization of any competition, but to lay the foundations to channel a system of free competition for the organization of soccer competitions”.

                  Thereafter, everyone is happy with the result; La Liga issued a statement stressing that the ruling does not endorse a project which, moreover, according to the same ruling, has been abandoned by its promoters. UEFA says that it is pleased to note that the judge has given a good and valid system of prior authorization for third-party competitions to be approved in accordance with UEFA’s authorization rules and has recognized the undoubted benefits of these rules for the soccer sporting system, concluding that “the judgment does not give third parties the right to develop competitions without authorization and does not refer to any future project or to any modified version of an existing project”.

                  The plaintiffs, too, are happy and content to proclaim that UEFA’s statutes and the aggressive measures taken to protect its monopoly have stifled innovation for decades. Clubs should not have to fear threats of sanctions simply for having ideas and having conversations. The era of monopoly is definitely over.

                  Rarely does one find that a judgment leaves all the litigants so happy and content, but that seems to be the case here. Or at least that is what all of them have been interested in communicating, when the harsh reality is, on the one hand, that the SuperLiga project as it was structured when the lawsuit started and FIFA/UEFA reacted furiously, is dead and buried, and on the other hand, that the happy world in which FIFA and UEFA regulated soccer and competitions as a private preserve, considered themselves immune and alien to ordinary justice and shared the money generated without being accountable to the Courts of Justice and threatened to expel or expel the rebellious spirits, has come to an end.

                  Commercial agents have specific regulations with rights and obligations that are “mandatory”: those who sign an agency contract cannot derogate from them. Answering whether an influencer can be an agent is essential because, if he or she is an agent, the agent regulations will apply to him or her.

                  Let’s take it one step at a time. The influencer we will talk about is the person who, with their actions and comments (blogs, social media accounts, videos, events, or a bit of everything), talks to their followers about the advantages of certain products or services identified with a certain third-party brand. In exchange for this, the influencer is paid.[1]

                  A commercial agent is someone who promotes the contracting of others’ products or services, does so in a stable way, and gets paid in return. He or she can also conclude the contract, but this is not essential.

                  The law imposes certain obligations and guarantees rights to those signing an agency contract. If the influencer is considered an “agent”, he or she should also have them. And there are several of them: for example, the duration, the notice to be given to terminate the contract, the obligations of the parties… And the most relevant, the right of the agent to receive compensation at the end of the relationship for the clientele that has been generated. If an influencer is an agent, he would also have this right.

                  How can an influencer be assessed as an agent? For that we must analyse two things: (a) the contract (and be careful because there is a contract, even if it is not written) and (b) how the parties have behaved.

                  The elements that, in my opinion, are most relevant to conclude that an influencer is an agent would be the following:

                   

                  a) the influencer promotes the contracting of services or the purchase of products and does so independently.

                  The contract will indicate what the influencer must do. It will be clearer to consider him as an agent if his comments encourage contracting: for example, if they include a link to the manufacturer’s website, if he offers a discount code, if he allows orders to be placed with him. And if he does so as an independent “professional”, and not as an employee (with a timetable, means, instructions).

                  It may be more difficult to consider him as an agent if he limits himself to talking about the benefits of the product or service, appearing in advertising as a brand image, and using a certain product, and speaking well of it. The important thing, in my opinion, is to examine whether the influencer’s activity is aimed at getting people to buy the product he or she is talking about, or whether what he or she is doing is more generic persuasion (appearing in advertising, lending his or her image to a product, carrying out demonstrations of its use), or even whether he or she is only seeking to promote himself or herself as a vehicle for general information (for example, influencers who make comparisons of products without trying to get people to buy one or the other). In the first case (trying to get people to buy the product) it would be easier to consider it as an “agent”, and less so in the other examples.

                   

                  b) this “promotion” is done in a continuous or stable manner.

                  Be careful because this continuity or stability does not mean that the contract has to be of indefinite duration. Rather, it is the opposite of a sporadic relationship. A one-year contract may be sufficient, while several unconnected interventions, even if they last longer, may not be sufficient.

                  In this case, influencers who make occasional comments, who intervene with isolated actions, who limit themselves to making comparisons without promoting the purchase of one or the other, and even if all this leads to sales, even if their comments are frequent and even if they can have a great influence on the behavior of their followers, would be excluded as agents.

                   

                  c) they receive remuneration for their activity.

                  An influencer who is remunerated based on sales (e.g., by promoting a discount code, a specific link, or referring to your website for orders) can more easily be considered as an agent. But also, if he or she only receives a fixed amount for their promotion. On the other hand, influencers who do not receive any remuneration from the brand (e.g. someone who talks about the benefits of a product in comparison with others, but without linking it to its promotion) would be excluded.

                   

                  Conclusion

                  The borderline between what qualifies an influencer as an agent and what does not can be very thin, especially because contracts are often not unambiguous and sometimes their services are multiple. The most important thing is to carefully analyse the contract and the parties’ behaviour.

                  An influencer could be considered a commercial agent to the extent that his or her activity promotes the contracting of the product (not simply if he or she carries out informative or image work), that it is done on a stable basis (and not merely anecdotal or sporadic) and in exchange for remuneration.

                  To assess the specific situation, it is essential to analyse the contract (if it is written, this is easier) and the parties’ behaviour.

                  In short, to draw up a contract with an influencer or, if it has already been signed, but you want to conclude it, you will have to pay attention to these elements. As an influencer you may have a strong interest in being considered an agent at the end of the contract and thus be entitled to compensation, while as employer you will prefer the opposite.

                  FINAL NOTE. In Spain and at the date of this comment (9 June 2024) I am not aware of any judgement dealing with this issue. My proposal is based on my experience of more than 30 years advising and litigating on agency contracts. On the other hand, and as far as I know, there is at least one judgment in Rome (Italy) dealing with the matter: Tribunale di Roma; Sezione Lavoro 4º, St. 2615 of 4 March 2024; R. G. n. 38445/2022.

                  Ignacio Alonso

                  Practice areas

                  • Agency
                  • Corporate
                  • Distribution
                  • Franchising
                  Contact Ignacio

                  Contact Ignacio





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