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西班牙
The lawyer-coach: a new way of practising
2025年12月23日
- 非诉讼解决机制
- 契约
- 诉讼
Cross-border merger and acquisition (M&A) transactions are carefully structured. Lawyers negotiate risk allocation, manage regulatory exposure, and draft documents designed to withstand scrutiny across multiple jurisdictions. On paper, many of these transactions are sound.
And yet a surprising number of deals struggle to deliver their expected value.
When that happens, the problem isn’t in the paperwork. It’s in the people: Do they believe in the deal?
Belief starts with communication. If people don’t understand the deal, the documents won’t save it.
What Lawyers See vs. What Everyone Else Feels
For lawyers, a transaction is all about managing risk. Disclosure is deliberate. Regulatory exposure is controlled. Words matter, and for good reason.
For everyone else, it feels different.
Employees hear their company has been sold to a foreign buyer and start filling in the blanks. Customers wonder if priorities will change. Regulators look for patterns. Journalists hunt for a local angle.
These audiences are not reading the transaction documents. They are responding to fragments of information, hallway chatter, and media coverage.
The gap between legal precision and human interpretation is where many cross-border deals begin to drift.
Silence Is Not Neutral
Between announcement and closing, caution often turns into radio silence.
There are understandable reasons for this. Multiple disclosure regimes apply. Competition laws constrain what can be shared. Employment rules vary by jurisdiction. No one wants to say the wrong thing in the wrong place.
The problem? Silence rarely creates stability.
In the absence of credible information, people make up their own stories. These spread quickly inside the company and beyond. Once those narratives take hold, they’re hard to unwind, even when the official version finally comes out.
By the time integration teams are ready to engage, behaviour has already shifted. Trust has thinned. Momentum has slowed. Positions have hardened, and assumptions feel like facts.
One Deal, Many Interpretations
Cross-border transactions remove the safety net of shared assumptions.
What sounds confident in one country can come across as arrogant in another. An announcement that seems careful and responsible in one market may look evasive somewhere else. Expectations around consultation, transparency and leadership vary more than many deal teams expect.
That is why a single global message often falls flat.
The commercial logic needs to be consistent, but trust is built locally. That means understanding who people listen to in each market and what they are actually worried about.
When uncertainty sets in, people protect their turf. Roles get guarded. Silos harden. Decisions slow as teams focus on keeping influence instead of building something new.
When communication misses this, the impact is rarely dramatic at first. It shows up slowly, through disengagement, resistance and delay.
Employees Decide Earlier Than You Think
For employees, M&A feels personal long before it feels strategic.
They want to know how decisions will be made, whether local expertise still matters, and what the deal means for their job and future. They don’t expect certainty, but they do expect straight answers.
Vague reassurances can create more anxiety than simply acknowledging what is not yet known.
Managers sit at the centre of this dynamic. They are more trusted than corporate communications but often lack the tools to explain what the deal means in practice. When they lack clarity, uncertainty spreads quickly and becomes entrenched.
Change is rarely the problem. Employees’ fear of losing their role, influence, identity, or stability drives disengagement.
External Attention Changes the Equation
Cross-border deals attract public and political scrutiny that domestic transactions often do not.
Foreign ownership, jobs, and national interest are not abstract concerns. They shape how regulators act and how quickly questions escalate. Media expectations differ widely. In some places, restraint signals seriousness. In others, it looks suspicious.
Internal uncertainty has a way of becoming visible externally. Customers and partners often sense it before leadership does.
Why This Matters for Deal Counsel
For lawyers advising on cross-border M&A, communication is not a branding exercise. It is part of deal execution.
Poorly sequenced communication can complicate regulatory engagement. Inconsistent messaging can undermine management credibility. Prolonged silence can make integration harder than it needs to be.
Handled well, communication supports the legal strategy rather than undercutting it. It helps ensure that what can be said, and what cannot, aligns with how people actually receive and interpret information in different markets. It reduces friction instead of creating it.
The most effective deal teams treat communication as core infrastructure. They build it in early, tailor it to each market, and know that trust comes from what’s said, what’s acknowledged, and who delivers the message.
A simple test applies: If the people affected by the deal can’t explain, in their own words, why it makes sense, the communication hasn’t worked.
Cross-border M&A rarely fails because advisers lack skill. It fails because the human side gets addressed too late.
For lawyers navigating these deals, spotting communication risk early can mean the difference between a deal that just closes, and one that truly succeeds.
For more than 35 years as a commercial lawyer, I have seen how many of us, myself included, confused effective advice with immediate and exhaustive answers. Now I feel that the worlds of law and business are changing: it is not enough to know (more and more laws, more requirements, more contradictory rulings… and more noise), but rather to listen, accompany and facilitate decisions. And that is where acting also as an executive coach offers an extraordinarily useful framework.
Lawyers are expected to solve problems. Executive coaches, however, help others (within an ethical framework) to discover the answer for themselves. And this can be a source of enormous professional and client satisfaction. When clients are faced with a problem, they do not need a legal analysis, but rather clarity and perspective to decide… based on ‘their problem’, not ‘our solution’. Integrating executive coaching tools into our professional practice transforms legal conversations and advice into something more effective: a decision-making process in which we accompany the client from start to finish.
I can think of three areas where the legal advisor and the executive coach meet:
- The relationship with the client. Listen carefully before advising.
Plutarch said that ‘listening well is the basis of living well’. And sometimes the client is not so much looking for an answer as for clarity in order to make a decision. Listening beyond what they say (and what they don’t say) allows us to understand what concerns them. A question can open up more avenues than a lecture, which will most likely leave them cold. When we listen without rushing and without bias, we create a space for reflection that helps clients to organise, prioritise and make meaningful decisions. Meaningful… for them.
- Negotiation and mediation.
In these processes, we use coaching techniques to help defuse resistance and move from confrontation to understanding. The lawyer-coach facilitates the parties listening to each other and discovering what lies behind their demands. A negotiation can be unblocked when the other party is allowed to express themselves. Agreements cease to be mere transactions and become shared decisions, which are more stable and sustainable over time and less likely to be sources of conflict.
- Accompanying processes of change in the client and their organisation
The lawyer-coach can become not only the drafter of the agreement but also the facilitator of change. They help those involved to understand what is at stake and align decisions with their values and objectives by managing resistance. The solicitor ceases to be a mere ‘provider’ of services (who is often only called upon at the end of the process) and becomes a partner in reflection.
In short, I perceive that today we are required to practise differently: less technical and more human, less reactive and more transformative. Coaching techniques help: conscious listening, constructive feedback, clarity of purpose… they allow us to better manage conflict, stress and uncertainty. Coaching, of course, does not replace the law, but rather broadens it and provides it with tools. Now, artificial intelligence (much faster and potentially much more comprehensive and exhaustive) is displacing us from our habits. Perhaps this allows us to glimpse that lawyers should not only be experts in rules, but also facilitators of difficult conversations, someone capable of combining analysis and empathy, precision and presence. Someone who understands that their value lies in helping their clients avoid conflicts or resolve them in the way that best suits them. And that is where the lawyer-coach has a lot to contribute.
How real estate tokenisation works, what is the regulatory framework, and what rights investors actually acquire?
Real estate tokenisation, already present in Spain for several years, is no longer a futuristic promise but a tangible reality in the Spanish market. It represents more than just a technological innovation: it signifies a profound transformation in how we understand ownership, investment, and liquidity within the real estate sector — one of the most traditional and tightly regulated areas of our economy.
What is real estate tokenisation and how does it work?
In essence, to tokenise a property today means converting the economic rights associated with that asset into digital units that can circulate on blockchain-based platforms. Each token represents a fraction of those economic rights, allowing investors with more modest capital to access a market that has traditionally required substantial investments.
The role of smart contracts
Tokens operate through smart contracts that automatically execute the distribution of rental income or resale proceeds of that partial representation of the property, including any potential difference in value, eliminating intermediaries and providing transparency to the process. This automation is not merely cosmetic: it reduces operational costs, speeds up transactions, and potentially increases the liquidity of assets that have historically been among the least liquid in the market.
The legal reality: what is actually tokenised in Spain
It is essential to clarify from the outset a key point often blurred by marketing discourse: in practice, real estate tokenisation projects in Spain do not tokenise the property itself but rather the economic rights linked to a corporate vehicle (usually a special purpose vehicle, or SPV) that owns the property. Spanish law only allows the tokenisation of shares in joint-stock companies (sociedades anónimas) using distributed ledger technology; shares in limited liability companies (sociedades limitadas) cannot be tokenised. This means that if the SPV is a limited liability company, its shares cannot be directly tokenised — only other instruments such as participative loans or credit rights over income streams can be represented as tokens. Only if the SPV is incorporated as a joint-stock company is it legally possible to tokenise its shares.
What rights does a real estate token investor actually acquire?
An investor who acquires a token does not become a direct co-owner of the property. Depending on the structure chosen, they may become a shareholder in a tokenised joint-stock company that owns the property or a holder of economic rights derived from participative loans or other indirect forms of economic participation issued by the SPV that owns the asset. The distinction is crucial: if the company faces solvency issues or bankruptcy, the value of the token collapses with it, and the investor cannot exercise any direct real rights over the property.
Spanish law, rooted in centuries of land registry tradition, does not currently allow the transfer of real property rights through the mere transfer of tokens; a public deed and registration are required for the transfer to be effective against third parties. The SPV structure is therefore a compromise between technological possibilities and the demands of the current legal framework.
Regulatory framework for real estate tokenisation in Spain
CNMV authorisation and the 2023 Securities Market Law
The Spanish regulator has begun to establish a legal foundation for this technology to develop within a secure framework. In 2023, the Spanish National Securities Market Commission (CNMV) authorised Adventurees Capital PFP as the first crowdfunding platform to issue tokenised securities — a milestone in the convergence of crowdfunding and blockchain. This authorisation was accompanied by the approval of Law 6/2023 on the Securities Market, which expressly recognises the representation of transferable securities through distributed ledger technologies such as blockchain, granting them full legal validity.
The role of the Land Registry in the blockchain era
In parallel, the Spanish Association of Land Registrars is exploring how to integrate blockchain technology into the registry system, although it is important to clarify the real scope of these initiatives. Current projects focus mainly on complementary applications such as digital management of the Building Book or improved traceability and accessibility of registry information. They do not aim to replace the fundamental pillars of the system: execution of public deeds before a notary and registration of ownership, which remain absolutely mandatory for the transfer of real rights over property. Registrars are firm in their institutional stance: blockchain can complement and streamline document management, but it cannot replace the legal control exercised by the registrar or the protection of third parties offered by the Land Registry — both essential components of the Spanish legal system. This position reflects the current limitation of the model: tokens circulate on the blockchain representing positions in SPVs or economic rights over them, but the actual ownership of the property remains anchored in the traditional registry system, held by the corporate vehicle, and any transfer of that ownership must still follow the conventional legal process with all its guarantees.
European regulation: ECSPR, MiCA and the DLT Pilot Regime
Spain also benefits from a European regulatory framework that is positioning the EU as a global leader in digital asset regulation. The European Crowdfunding Service Providers Regulation (ECSPR) harmonises the rules for crowdfunding platforms, allowing an authorised platform in one Member State to operate across the EU through the so-called “European passport”. The MiCA Regulation, which came fully into force on 30 December 2024, broadly regulates crypto-asset markets, setting obligations for both issuers and service providers. The DLT Pilot Regime (EU Regulation 2022/858) allows market infrastructures based on distributed ledger technology to operate under certain temporary exemptions, creating a controlled testing environment to assess the potential of these technologies in financial markets.
The Spanish regulator’s approach could be described as cautiously supportive: innovation is encouraged, but strict compliance with anti-money laundering, customer identification, and disclosure obligations is required to protect investors. This is not technological laissez-faire, but rather an effort to integrate innovation within a solid framework of legal guarantees.
Legal challenges and risks of real estate tokenisation
The risks of the SPV structure
The legal challenges that remain are significant and deserve attention. The SPV structure, while legally viable, introduces an additional layer of complexity and risk that must be clearly communicated to investors. Unlike direct ownership — where the investor holds real rights over the property enforceable against third parties — in the current tokenised model, investors hold positions in indirect forms of economic participation (shares, participative loans, credit rights) linked to the company that owns the property. This has important implications for corporate liability, taxation, and insolvency protection.
The disconnect between the on-chain and off-chain worlds
It is also essential to understand that the connection between the “on-chain” world (where tokens circulate) and the “off-chain” world (where property rights are recorded) is neither direct nor automatic. Transferring a token does not in itself alter the Land Registry: ownership of the property remains with the SPV regardless of who holds the tokens, and only a duly notarised and registered deed can change that ownership. The exploratory projects of the Land Registrars aim to improve efficiency in information management but do not alter this fundamental principle. As in any emerging market, it is essential to prevent fraudulent schemes that promise unrealistic returns or market tokens without proper legal backing.
Practical implications for investors and legal practitioners
For legal practitioners, real estate tokenisation may require adapting contracts, corporate bylaws, and financing structures to an environment where rights circulate digitally and in a decentralised manner. For investors, it offers an opportunity to diversify portfolios with smaller capital contributions and greater liquidity potential than traditional real estate investment, provided they understand that they are not acquiring direct ownership of the property but rather a financial position linked to the corporate structure that owns it. And for the wider economy, it could invigorate a real estate market worth trillions of euros by facilitating the entry of retail capital previously excluded from such investments.
The future of real estate tokenisation in Spain
This is an evolution that combines law, technology, and finance in an inseparable way. It is essential to understand that tokenisation is not a passing trend but a tool that, when properly used and regulated, can transform access to one of society’s most valuable assets — property. However, this transformation currently operates through intermediate corporate structures and indirect forms of economic participation, not through direct ownership as commercial language sometimes suggests. It certainly does not imply an immediate revolution of Spain’s land registration system, whose fundamental guarantees remain intact.
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.
Since the General Data Protection Regulation (GDPR) took effect in 2018, the European Union (EU) has granted adequacy status to only a limited number of jurisdictions — those whose data protection regimes are deemed to provide an “essentially equivalent” level of protection to that of the EU. The current list includes Andorra, Argentina, Canada (under PIPEDA), Faroe Islands, Guernsey, Isle of Man, Israel, Japan, Jersey, New Zealand, South Korea, Switzerland, Uruguay, the United Kingdom, and the United States (limited to companies certified under the Data Privacy Framework).
As of 5 September 2025, Brazil is on the verge of joining this exclusive group. The European Commission has issued a draft adequacy decision concluding that the Brazilian General Data Protection Law (Lei Geral de Proteção de Dados Pessoais – LGPD), in conjunction with Brazil’s broader legal and constitutional framework, offers protections that are essentially equivalent to those found in the GDPR. While Brazil’s rules offer somewhat more flexibility in specific areas of data processing, the foundational principles and safeguards are well-aligned with EU standards.
Once finalized, the adequacy decision will authorize the free flow of personal data from the EU to Brazil without the need for additional contractual clauses or technical safeguards. Such a development is not just regulatory — it also answers a core political argument made by LGPD advocates since its inception: that the absence of a comprehensive data protection framework was undermining Brazil’s international competitiveness by limiting data flows and discouraging investment. For businesses, the EU decision may finally mean the removal of a significant layer of compliance complexity — a development especially welcome by small and medium-sized enterprises engaged in cross-border trade or service provision. The draft is currently under review by the European Data Protection Board (EDPB) and the Member States of the EU.
The Commission’s assessment highlights several key aspects of Brazil’s data protection landscape. It begins by noting that the Brazilian Constitution expressly guarantees the right to privacy and the protection of personal data — a notable distinction among non-EU jurisdictions. These protections are further supported by Brazil’s ratification of the American Convention on Human Rights and its recognition of the jurisdiction of the Inter-American Court of Human Rights, reinforcing a commitment to fundamental rights and democratic oversight.
The LGPD mirrors the GDPR in many critical respects and defines its territorial scope clearly. It applies to: (i) data processing carried out within Brazilian territory, (ii) the offering of goods or services to individuals in Brazil, and (iii) data collected in Brazil, even if subsequently processed abroad. This aligns well with the extraterritorial provisions of the GDPR. The definitions of personal data, sensitive data, controller, and processor are materially similar, as are the key principles governing processing — including lawfulness, purpose limitation, data minimization, accuracy, transparency, and security. The law expressly excludes anonymized data from its scope and establishes specific exemptions for journalistic activities, public security, and scientific research.
Another strength is Brazil’s institutional framework. The National Data Protection Authority (ANPD) was recently transformed into an autonomous regulatory agency, enhancing its independence and technical capacity. The ANPD holds both regulatory and enforcement powers: it can issue binding regulations, impose administrative sanctions, and publish authoritative guidance. To date, it has issued key guidelines on topics such as consent, legitimate interest, the role of the Data Protection Officer (DPO), and security incident reporting. Internationally, the ANPD is an active participant in global data protection dialogue — it is a member of the Global Privacy Assembly and an official observer to the Council of Europe’s Convention 108.
The LGPD’s approach to international data transfers is also structurally aligned with the GDPR. It requires appropriate safeguards such as standard contractual clauses, allows for future adequacy decisions under a regime comparable to Article 45 of the GDPR, and includes detailed provisions for onward transfers and transit data — that is, data merely passing through Brazil without further processing. The rights of data subjects are robust and familiar to European practitioners: access, rectification, erasure, portability, and withdrawal of consent are guaranteed. Lawful bases for processing are also aligned — including consent, legal obligations, contract execution, and legitimate interest. Notably, the LGPD requires a documented balancing test when relying on legitimate interest, bringing additional accountability to this flexible legal basis.
Security incidents involving personal data must be notified to both the ANPD and affected data subjects when there is a significant risk of harm. The standard notification deadline is 72 hours, and the required content aligns closely with Articles 33 and 34 of the GDPR. The ANPD may also order public disclosure of incidents or require remedial measures, depending on the nature and scope of the breach.
Importantly, this process is not one-sided. In parallel to the European Commission’s adequacy decision, the ANPD is conducting its own adequacy assessment of the EU and EEA data protection frameworks. This process is regulated by the Brazilian Resolution CD/ANPD No. 19/2024, which governs international data transfers. Once the technical and legal evaluation is complete, the ANPD’s Board of Directors will issue a formal decision. This reciprocal move reflects Brazil’s commitment to mutual recognition and regulatory symmetry — a positive signal for companies on both sides of the Atlantic.
In conclusion: If confirmed, Brazil’s adequacy status will simplify international operations, reduce compliance costs, and expand opportunities for data-driven business and legal cooperation. For European lawyers advising SMEs with interests in Latin America, this development is a strategic signal: Brazil is emerging not just as a growing market, but as a legally compatible and data-safe jurisdiction for international partnerships.
Remember the USA – EU agreement on 15% tariffs? I wrote that with a negotiator like Trump the game is never over (article here) and—after the recent interlude featuring a threat of 100% tariffs on pharmaceuticals—the U.S. government has announced the imposition of an overall 107% duty on Italian pasta, which could take effect on January 1, 2026.
Where this new duty comes from
The antidumping investigation was launched by the U.S. Department of Commerce at the request of certain competing American companies and is based on a 1996 antidumping order that allows for periodic reviews of imports of Italian pasta. The Department of Commerce conducts these checks annually to assess whether Italian producers are selling pasta at prices lower than the U.S. domestic market, a practice known as “dumping.”
Companies involved in the investigation
The Department of Commerce selected two sample companies for in-depth analysis, defined as “mandatory respondents”: La Molisana and Pastificio Lucio Garofalo. According to the official document published by the U.S. administration, for the period from July 1, 2023 to June 30, 2024, both companies allegedly sold their products below market prices, resulting in the imposition of a duty of 91.74%.
U.S. authorities justified this percentage by claiming the two companies did not provide complete or compliant information as requested by the Department and were therefore insufficiently cooperative during the investigation. What is very important is that, in addition to the two companies directly examined, the additional 91.74% duty is also applied to numerous other Italian producers not individually reviewed. This methodology, while formally permitted under U.S. law as an exception, is being applied without any direct verification of the other companies.
Next steps in the procedure
Italy’s Ministry of Foreign Affairs moved immediately, formally intervening in the proceeding as an “interested party” through the Italian Embassy in Washington. The Foreign Ministry is working in close coordination with the companies concerned and, in concert with the European Commission, to persuade the U.S. Department to revise the provisional duties.
The two companies involved (La Molisana and Garofalo) can submit documentation to contest the dumping allegations. However, if dumping is confirmed, the Department of Commerce will instruct Customs to apply antidumping duties on goods sold and entered into U.S. commerce.
The preliminary nature of this determination means there is still room to change the decision before it becomes final.
Possible effective date
The new super-duty of 91.74%, which will be added to the existing 15% tariff for a total of 107%, is scheduled to take effect on January 1, 2026. This date therefore represents a crucial deadline for all ongoing diplomatic and legal actions.
If confirmed, the economic impact would be significant: in 2024, Italian pasta exports to the United States reached a value of €671 million according to Coldiretti, accounting for nearly 17% of the sector’s total exports. A 107% duty would risk seriously undermining competitiveness in one of the most important markets for Italian agri-food products.
What to do between now and January 1, 2026?
At this stage, the entry into force of the new duty depends on the outcome of the ongoing procedure: given what has happened in recent months, and the political use the U.S. administration has made of tariffs—well beyond their technical function—it is reasonable to be pessimistic.
So, what to do? In recent months we have seen companies react to the uncertainty over the fate of the tariffs in three ways:
- Some rushed to ship as many products as possible before the potential effective date of the duty;
- Some granted—upfront—discounts equivalent to the threatened duty, in case it came into force;
- Some suspended orders, pending definitive news on the impact of the duties.
These are all valid options, but other effective tools for managing the uncertainty caused by the flurry of announcements, negotiations, and threats from the U.S. administration should not be forgotten: the risk of new duties being introduced, or existing ones being increased, can be managed in the contract by agreeing with the U.S. importer how any tariff change will affect the product.
The parties can stipulate, for example, that the increase will be split equally; or that the importer will bear it beyond a certain threshold; or that if the duty exceeds a certain level, the contracts may be terminated. You can find a deeper dive in this article.
The only certainty is that trade relations with the U.S. will stay unpredictable for a long time, and it’s vital to carefully manage the risk factors involved in selling products there. Right now, the focus is on tariffs and prices, and I encourage you to take this chance to thoroughly review existing agreements and assess whether—and how—other important points are addressed that could entail significant liabilities: we discuss them, very practically, in this book.
A dedicated notary account in Brazil is a legal mechanism that brings greater security, transparency, and reliability to financial transactions. Regulated under Law 8.935/1994 and Provision No. 197/2025, this service allows notaries to receive, manage, and release funds only after contractual conditions have been fulfilled. By ensuring segregation of assets, traceability, and impartial oversight, dedicated notary accounts provide an effective escrow-like solution for real estate deals, mergers and acquisitions, import/export operations, high-value asset purchases, and complex commercial contracts. This tool not only reduces legal risks and potential disputes but also strengthens trust between parties by guaranteeing that payments are safeguarded until obligations are met.
The legal basis can be found in Law 8.935/1994, § 1 of art. 7-A, which allows notaries to receive, deposit, and manage amounts related to legal transactions, with transactions subject to objectively verifiable facts/conditions. Provision No. 197, dated June 13, 2025, regulates, at the national level, the service of notarial accounts linked to Notary Public Offices.
Practical applications: among others, in the following transactions:
- Real estate: guarantee that the down payment and settlement amounts will be secured in a specific account. This mitigates the risk of misappropriation of funds and ensures that the money will be released only after all contractual conditions have been met.
- M&A: the linked notarial account creates a standardized escrow mechanism for the payment of price/holdbacks/earn-outs and conditional obligations.
- Purchase and Sale of High-Value Movable Property: the linked account can be used to guarantee payment. The buyer deposits the amount and the seller knows that the money is safe, being released only after the transfer of ownership and delivery of the goods.
- Import and Export: the transaction amount can be deposited with the notary and released to the exporter only after confirmation of delivery of the goods in the destination country, for example.
- Guarantee of Obligations: In any contract that provides for the payment of a sum of money as a guarantee, the notary account can be used to provide greater security to the parties.
- Supply, EPC/turnkey, and construction contracts: performance retentions, milestone acceptance (commissioning, as-built, issuance of ART/CREA), and payment against formal acceptance.
- Contractual joint ventures and commercial partnerships: advances conditional on licenses, authorizations, or competitive approval, where applicable.
Reduction of Legal Risks: The use of linked accounts reduces the chances of litigation related to lack of clarity about the origin and destination of funds. Companies can clearly demonstrate that payments were made and held by an impartial and secure institution.
Operational structure: limited to banking entities affiliated with the CNB, which must ensure the segregation of assets, traceability through audit trails, and proof of all transactions. The authorization of the delegate requires prior accreditation and electronic registration of the essential details of the transaction and its conditions in the CNB system, with access restricted to the parties and the notary.
Specific Purpose: amounts received as payment, guarantee, or advance payment as a result of notarial acts must be deposited in a bank account linked to the specific act and may only be moved for the purpose for which they are intended.
Transparency and Traceability: With the linked notarial account, it is possible to clearly track the financial flow of each transaction, which increases transparency for all parties and for supervisory bodies.
Verification of conditions and release. Once the objective conditions have been met, the notary authorizes the transfer to the recipients and files the proof of verification. In the event of a dispute between the parties, the notary suspends any movement, draws up a notarial deed, and advises on a consensual or judicial solution, without deciding on the effectiveness/termination of the transaction; if the transaction is frustrated and no solution is found, the procedure is terminated and the amounts are returned to the depositor, in accordance with the agreed clauses.
Confidentiality and access. In transactions with a confidentiality clause, the notary public maintains confidentiality and does not issue certificates regarding the content of the transaction; documents are accessible only for correctional purposes or by court order.
Remuneration and costs. The notary’s remuneration for the notarial account service is paid by the financial institution under the terms of the agreement, and the transfer of additional costs to the user is prohibited, without prejudice to fees for any related notarial acts.
Given the significance of the influencer market (over €21 billion in 2023), which now encompasses all sectors, and with a view for transparency and consumer protection, France, with the law of June 9, 2023, proposed the world’s first regulation governing the activities of influencers, with the objective of defining and regulating influencer activities on social media platforms.
However, influencers are subject to multiple obligations stemming from various sources, necessitating the utmost vigilance, both in drafting influence agreements (between influencers and agencies or between influencers and advertisers) and in the behaviour they must adopt on social media or online platforms. This vigilance is particularly heightened as existing regulations do not cover the core of influencers’ activities, especially their status and remuneration, which remain subject to legal ambiguity, posing risks to advertisers as regulatory authorities’ scrutiny intensifies.
Key points to remember
- Influencers’ activity is subject to numerous regulations, including the law of June 9, 2023.
- This law not only regulates the drafting of influence contracts but also the influencer’s behaviour to ensure greater transparency for consumers.
- Every influencer whose audience includes French users is affected by the provisions of the law of June 9, 2023, even if they are not physically present in French territory.
- Both the law of June 9, 2023, and the “Digital Services Act,” as well as the proposed law on “fast fashion,” foresee increasing accountability for various actors in the commercial influence sector, particularly influencers and online platforms.
- Despite a plethora of regulations, the status and remuneration of influencers remain unaddressed issues that require special attention from advertisers engaging with influencers.
The law of June 9, 2023, regulating influencer activity
The definition of influencer professions
The law of June 9, 2023, provides two essential definitions for influencer activities:
- Influencers are defined as ‘natural or legal persons who, for consideration, mobilize their notoriety with their audience to communicate to the public, electronically, content aimed at promoting, directly or indirectly, goods, services, or any cause, engaging in commercial influence activities electronically.’
- The activity of an influencer agent is defined as ‘that which consists of representing, for consideration,’ the influencer or a possible agent ‘with the aim of promoting, for consideration, goods, services, or any cause‘ (article 7) The influencer agent must take ‘necessary measures to ensure the defense of the interests of the persons they represent, to avoid situations of conflict of interest, and to ensure the compliance of their activity‘ with the law of June 9, 2023.
The obligations imposed on commercial messages created by the influencer
The law sets forth obligations that influencers must adhere to regarding their publications:
- Mandatory particulars: When creating content, this law imposes an obligation on influencers to provide information to consumers, aiming for transparency towards their audience. Thus, influencers are required to clearly, legibly, and identifiably indicate on the influencer’s image or video, regardless of its format and throughout the entire viewing duration (according to modalities to be defined by decree):
– The mention “advertisement” or “commercial collaboration.” Violating this obligation constitutes deceptive commercial practice punishable by two years’ imprisonment and a fine of €300,000 (Article 5 of the law of June 9, 2023).
– The mention of “altered images” (modification by image processing methods aimed at refining or thickening the silhouette or modifying the appearance of the face) or “virtual images” (images created by artificial intelligence). Failure to do so may result in a one-year prison sentence and a fine of €4,500 (Article 5 of the law of June 9, 2023).
- Prohibited or regulated promotions: This law reminds certain prohibitions, subject to criminal and administrative sanctions, stemming from French law on the direct or indirect promotion of certain categories of products and services, under penalty of criminal or administrative sanctions. This includes the promotion of products and services related to:
– health: surgery, aesthetic medicine, therapeutic prescriptions, and nicotine products;
– non-domestic animals, unless it concerns an establishment authorized to hold them;
– financial: contracts, financial products, and services;
– sports-related: subscriptions to sports advice or predictions;
– crypto assets: if not from registered actors or have not received approval from the AMF;
– gambling: their promotion prohibited for those under 18 years old and regulated by law;
– professional training: their promotion is not prohibited but regulated.
The accountability of influencer behaviour
The law also holds influencers accountable from the contracting of their relationships and when they act as sellers:
- Regulation of commercial influence agreements: This law imposes, subject to nullity, from a certain threshold of influencer remuneration (defined by decree), the formalization in writing of the agreement between the advertiser and the influencer, but also, if applicable, between the influencer’s agent, and the mandatory stipulation of certain clauses (remuneration, mission description, etc.).
- Influencer responsibility as a cyber seller: Influencers engaging in drop shipping (selling products without handling their delivery, done by the supplier) must provide the buyer with all information in French as required by Article L. 221-5 of the Consumer Code about the product, such as its availability and legality (i.e., guarantee that the product is not counterfeit), applicable product warranty, and supplier identity. Additionally, influencers must ensure the proper delivery and receipt of products and, in case of default, compensate the buyer. Influencers are also logically subject to obligations regarding deceptive commercial practices (for more information, the DGCCRF website explain the dropshipping).
The accountability of other actors in the commercial influence ecosystem
Joint and several liability is set by law, for the advertiser, influencer, or influencer’s agent for damages caused to third parties in the execution of the commercial influence contract, allowing the victim of the damage to act against the most solvent party.
Furthermore, the law introduces accountability for online platforms by partially incorporating the European Regulation 2022/2065 on digital services (known as the “DSA“) of October 19, 2022.
French regulation and international influencers
Influencers established outside the European Union (including also Switzerland and the EEA) who promote products or services to a French audience must obtain professional liability insurance from an insurer established within the EU. They must also designate a legal or natural person providing “a form of representation” (SIC) within the EU. This representative (whose regime is not very clear) is remunerated to represent the influencer before administrative and judicial authorities and to ensure the compliance of the influencer’s activity with law of June 9, 2023.
Furthermore, according to law of June 9, 2023, when the contract binding the influencer (or their agency) aims to implement a commercial influence activity electronically “targeting in particular an audience established in French territory” (SIC), this contract should be exclusively subject to French law (including the Consumer Code, the Intellectual Property Code, and the law of June 9, 2023). According to this law, the absence of such a stipulation would be sanctioned by the nullity of the contract. Law of June 9, 2023, seems to be established as an overriding mandatory law capable of setting aside the choice of a foreign law.
However, the legitimacy (what about compliance with the definition of overriding mandatory rules established by Regulation Rome I?) and effectiveness (what if the contract specifies a foreign law and a foreign jurisdiction?) of such a legal provision can be questioned, notably due to its vague and general wording. In fact, it should be the activity deployed by the “foreign” influencer to their community in France that should be apprehended by French overriding mandatory rules, rather than the content of the agreement concluded with the advertiser (which itself could also be foreign, by the way).
The other regulations governing the activity of influencers
The European regulations
The DSA further holds influencers accountable because, in addition to the reporting mechanism imposed on platforms to report illicit content (thus identifying a failing influencer), platforms must ensure (and will therefore shift this responsibility to the influencer) the identification of commercial communications and specific transparency obligations towards consumers.
The «soft law»
As early as 2015, the Advertising Regulatory Authority (“ARPP”) issued recommendations on best practices for digital advertising. Similarly, in March 2023, the French Ministry of Economy published a “code of conduct” for influencers and content creators. In 2023, the European Commission launched a legal information platform for influencers. Although non-binding, these rules, in addition to existing regulations, serve as guidelines for both influencers and content creators, as well as for judicial and administrative authorities.
The special status of child influencers
The law of October 19, 2020, aimed at regulating the commercial exploitation of children’s images on online platforms, notably opens up the possibility for child influencers to be recognized as salaried workers. However, this law only targeted video-sharing platforms. Article 2 of the law of June 9, 2023, extended the provisions regarding child influencer labor introduced by the 2020 law to all online platforms. Finally, a recent law aimed at ensuring respect for the image rights of children was published on February 19, 2024, introducing a principle of joint and several responsibility of both parents in protecting the minor’s image rights.
The status and remuneration of influencers: uncertainty persists
Despite the diversity of regulations applicable to influencers, none address their status and remuneration.
The status of the influencer
In the absence of regulations governing the status of influencers, a legal ambiguity persists regarding whether the influencer should be considered an independent contractor, an employee (as is partly the case for models or artists), or even as a brand representative (i.e. commercial agent), depending on the missions contractually entrusted to the influencer.
The nature of the contract and the applicable social security regime stem from the missions assigned to the influencer:
- In the case of an employment contract, the influencer will fall under the general regime for employees and assimilated persons, based on Articles L. 311-2 or 311-3 of the French Social Security Code.
- In the case of a service contract, the influencer will fall under the regime for self-employed workers.
The existence of a relationship of subordination between the advertiser and the influencer typically determines the qualification of an employment contract. Subordination is generally characterized when the employer gives orders and directives, has the power to control and sanction, and the influencer follows these directives. However, some activities are subject to a presumption of an employment contract; this is the case (at least in part) for artist contracts under Article L. 7121-3 of the French Labor Code and model contracts under Article L. 7123-2 of the French Labor Code.
The remuneration of the influencer
The influencer can be remunerated in cash (fixed or proportional) and/or in kind (for example: receiving a product from the brand, invitations to private or public events, coverage of travel expenses, etc.). The influencer’s remuneration must be specified in the influencer agreement and is directly impacted by the influencer’s status, as certain obligations (minimum wage, payment of social security contributions, etc.) apply in the case of an employment contract.
Furthermore, the remuneration (for the influencer’s services) must be distinguished from that of the transfer of their copyrights or image rights, which are subject to separate remuneration in exchange for the IP rights transferred.
The influencers… in the spotlight
The law of June 9, 2023, grants the French authority (i.e. the Consumer Affairs, Competition and Fraud Prevention Agency, “DGCCRF”) new injunction powers (with reinforced penalties). This comes in addition to the recent creation of a “commercial influence squad“, within the DGCCRF, tasked with monitoring social networks, and responding to reports received through Signal Conso. The law provides for fines and the possibility of blocking content.
As early as August 2023, the DGCCRF issued warnings to several influencers to comply with the new regulations on commercial influence and imposed on them the obligation to publicly disclose their conviction for non-compliance with the new provisions regarding transparency to consumers on their own social networks, a heavy penalty for actors whose activity relies on their popularity (DGCCRF investigation on the commercial practices of influencers).
On February 14, 2024, the European Commission and the national consumer protection authorities of 22 EU member states, Norway, and Iceland published the results of an analysis conducted on 570 influencers (the so-called “clean-up operation” of 2023 on influencers): only one in five influencers consistently presented their commercial content as advertising.
In response to environmental, ethical, and quality concerns related to “fast fashion,” a draft law aiming to ban advertising for fast fashion brands, including advertising done by influencers (Proposal for a law aiming to reduce the environmental impact of the textile industry), was adopted by the National Assembly on first reading on March 14, 2024.
Lastly, the law of June 9, 2023, has been criticized by the European Commission, which considers that the law would contravene certain principles provided by EU law, notably the principle of “country of origin,” according to which the company providing a service in other EU countries is exclusively subject to the law of its country of establishment (principle initially provided for by the E-commerce Directive of June 8, 2000, and included in the DSA). Some of its provisions, particularly those concerning the application of French law to foreign influencers, could therefore be subject to forthcoming – and welcome – modifications.
加拿大 
波兰 
越南 
写信给 Ignacio
Real Estate Tokenisation in Spain
2025年11月3日
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西班牙
- 契约
- 房地产
Cross-border merger and acquisition (M&A) transactions are carefully structured. Lawyers negotiate risk allocation, manage regulatory exposure, and draft documents designed to withstand scrutiny across multiple jurisdictions. On paper, many of these transactions are sound.
And yet a surprising number of deals struggle to deliver their expected value.
When that happens, the problem isn’t in the paperwork. It’s in the people: Do they believe in the deal?
Belief starts with communication. If people don’t understand the deal, the documents won’t save it.
What Lawyers See vs. What Everyone Else Feels
For lawyers, a transaction is all about managing risk. Disclosure is deliberate. Regulatory exposure is controlled. Words matter, and for good reason.
For everyone else, it feels different.
Employees hear their company has been sold to a foreign buyer and start filling in the blanks. Customers wonder if priorities will change. Regulators look for patterns. Journalists hunt for a local angle.
These audiences are not reading the transaction documents. They are responding to fragments of information, hallway chatter, and media coverage.
The gap between legal precision and human interpretation is where many cross-border deals begin to drift.
Silence Is Not Neutral
Between announcement and closing, caution often turns into radio silence.
There are understandable reasons for this. Multiple disclosure regimes apply. Competition laws constrain what can be shared. Employment rules vary by jurisdiction. No one wants to say the wrong thing in the wrong place.
The problem? Silence rarely creates stability.
In the absence of credible information, people make up their own stories. These spread quickly inside the company and beyond. Once those narratives take hold, they’re hard to unwind, even when the official version finally comes out.
By the time integration teams are ready to engage, behaviour has already shifted. Trust has thinned. Momentum has slowed. Positions have hardened, and assumptions feel like facts.
One Deal, Many Interpretations
Cross-border transactions remove the safety net of shared assumptions.
What sounds confident in one country can come across as arrogant in another. An announcement that seems careful and responsible in one market may look evasive somewhere else. Expectations around consultation, transparency and leadership vary more than many deal teams expect.
That is why a single global message often falls flat.
The commercial logic needs to be consistent, but trust is built locally. That means understanding who people listen to in each market and what they are actually worried about.
When uncertainty sets in, people protect their turf. Roles get guarded. Silos harden. Decisions slow as teams focus on keeping influence instead of building something new.
When communication misses this, the impact is rarely dramatic at first. It shows up slowly, through disengagement, resistance and delay.
Employees Decide Earlier Than You Think
For employees, M&A feels personal long before it feels strategic.
They want to know how decisions will be made, whether local expertise still matters, and what the deal means for their job and future. They don’t expect certainty, but they do expect straight answers.
Vague reassurances can create more anxiety than simply acknowledging what is not yet known.
Managers sit at the centre of this dynamic. They are more trusted than corporate communications but often lack the tools to explain what the deal means in practice. When they lack clarity, uncertainty spreads quickly and becomes entrenched.
Change is rarely the problem. Employees’ fear of losing their role, influence, identity, or stability drives disengagement.
External Attention Changes the Equation
Cross-border deals attract public and political scrutiny that domestic transactions often do not.
Foreign ownership, jobs, and national interest are not abstract concerns. They shape how regulators act and how quickly questions escalate. Media expectations differ widely. In some places, restraint signals seriousness. In others, it looks suspicious.
Internal uncertainty has a way of becoming visible externally. Customers and partners often sense it before leadership does.
Why This Matters for Deal Counsel
For lawyers advising on cross-border M&A, communication is not a branding exercise. It is part of deal execution.
Poorly sequenced communication can complicate regulatory engagement. Inconsistent messaging can undermine management credibility. Prolonged silence can make integration harder than it needs to be.
Handled well, communication supports the legal strategy rather than undercutting it. It helps ensure that what can be said, and what cannot, aligns with how people actually receive and interpret information in different markets. It reduces friction instead of creating it.
The most effective deal teams treat communication as core infrastructure. They build it in early, tailor it to each market, and know that trust comes from what’s said, what’s acknowledged, and who delivers the message.
A simple test applies: If the people affected by the deal can’t explain, in their own words, why it makes sense, the communication hasn’t worked.
Cross-border M&A rarely fails because advisers lack skill. It fails because the human side gets addressed too late.
For lawyers navigating these deals, spotting communication risk early can mean the difference between a deal that just closes, and one that truly succeeds.
For more than 35 years as a commercial lawyer, I have seen how many of us, myself included, confused effective advice with immediate and exhaustive answers. Now I feel that the worlds of law and business are changing: it is not enough to know (more and more laws, more requirements, more contradictory rulings… and more noise), but rather to listen, accompany and facilitate decisions. And that is where acting also as an executive coach offers an extraordinarily useful framework.
Lawyers are expected to solve problems. Executive coaches, however, help others (within an ethical framework) to discover the answer for themselves. And this can be a source of enormous professional and client satisfaction. When clients are faced with a problem, they do not need a legal analysis, but rather clarity and perspective to decide… based on ‘their problem’, not ‘our solution’. Integrating executive coaching tools into our professional practice transforms legal conversations and advice into something more effective: a decision-making process in which we accompany the client from start to finish.
I can think of three areas where the legal advisor and the executive coach meet:
- The relationship with the client. Listen carefully before advising.
Plutarch said that ‘listening well is the basis of living well’. And sometimes the client is not so much looking for an answer as for clarity in order to make a decision. Listening beyond what they say (and what they don’t say) allows us to understand what concerns them. A question can open up more avenues than a lecture, which will most likely leave them cold. When we listen without rushing and without bias, we create a space for reflection that helps clients to organise, prioritise and make meaningful decisions. Meaningful… for them.
- Negotiation and mediation.
In these processes, we use coaching techniques to help defuse resistance and move from confrontation to understanding. The lawyer-coach facilitates the parties listening to each other and discovering what lies behind their demands. A negotiation can be unblocked when the other party is allowed to express themselves. Agreements cease to be mere transactions and become shared decisions, which are more stable and sustainable over time and less likely to be sources of conflict.
- Accompanying processes of change in the client and their organisation
The lawyer-coach can become not only the drafter of the agreement but also the facilitator of change. They help those involved to understand what is at stake and align decisions with their values and objectives by managing resistance. The solicitor ceases to be a mere ‘provider’ of services (who is often only called upon at the end of the process) and becomes a partner in reflection.
In short, I perceive that today we are required to practise differently: less technical and more human, less reactive and more transformative. Coaching techniques help: conscious listening, constructive feedback, clarity of purpose… they allow us to better manage conflict, stress and uncertainty. Coaching, of course, does not replace the law, but rather broadens it and provides it with tools. Now, artificial intelligence (much faster and potentially much more comprehensive and exhaustive) is displacing us from our habits. Perhaps this allows us to glimpse that lawyers should not only be experts in rules, but also facilitators of difficult conversations, someone capable of combining analysis and empathy, precision and presence. Someone who understands that their value lies in helping their clients avoid conflicts or resolve them in the way that best suits them. And that is where the lawyer-coach has a lot to contribute.
How real estate tokenisation works, what is the regulatory framework, and what rights investors actually acquire?
Real estate tokenisation, already present in Spain for several years, is no longer a futuristic promise but a tangible reality in the Spanish market. It represents more than just a technological innovation: it signifies a profound transformation in how we understand ownership, investment, and liquidity within the real estate sector — one of the most traditional and tightly regulated areas of our economy.
What is real estate tokenisation and how does it work?
In essence, to tokenise a property today means converting the economic rights associated with that asset into digital units that can circulate on blockchain-based platforms. Each token represents a fraction of those economic rights, allowing investors with more modest capital to access a market that has traditionally required substantial investments.
The role of smart contracts
Tokens operate through smart contracts that automatically execute the distribution of rental income or resale proceeds of that partial representation of the property, including any potential difference in value, eliminating intermediaries and providing transparency to the process. This automation is not merely cosmetic: it reduces operational costs, speeds up transactions, and potentially increases the liquidity of assets that have historically been among the least liquid in the market.
The legal reality: what is actually tokenised in Spain
It is essential to clarify from the outset a key point often blurred by marketing discourse: in practice, real estate tokenisation projects in Spain do not tokenise the property itself but rather the economic rights linked to a corporate vehicle (usually a special purpose vehicle, or SPV) that owns the property. Spanish law only allows the tokenisation of shares in joint-stock companies (sociedades anónimas) using distributed ledger technology; shares in limited liability companies (sociedades limitadas) cannot be tokenised. This means that if the SPV is a limited liability company, its shares cannot be directly tokenised — only other instruments such as participative loans or credit rights over income streams can be represented as tokens. Only if the SPV is incorporated as a joint-stock company is it legally possible to tokenise its shares.
What rights does a real estate token investor actually acquire?
An investor who acquires a token does not become a direct co-owner of the property. Depending on the structure chosen, they may become a shareholder in a tokenised joint-stock company that owns the property or a holder of economic rights derived from participative loans or other indirect forms of economic participation issued by the SPV that owns the asset. The distinction is crucial: if the company faces solvency issues or bankruptcy, the value of the token collapses with it, and the investor cannot exercise any direct real rights over the property.
Spanish law, rooted in centuries of land registry tradition, does not currently allow the transfer of real property rights through the mere transfer of tokens; a public deed and registration are required for the transfer to be effective against third parties. The SPV structure is therefore a compromise between technological possibilities and the demands of the current legal framework.
Regulatory framework for real estate tokenisation in Spain
CNMV authorisation and the 2023 Securities Market Law
The Spanish regulator has begun to establish a legal foundation for this technology to develop within a secure framework. In 2023, the Spanish National Securities Market Commission (CNMV) authorised Adventurees Capital PFP as the first crowdfunding platform to issue tokenised securities — a milestone in the convergence of crowdfunding and blockchain. This authorisation was accompanied by the approval of Law 6/2023 on the Securities Market, which expressly recognises the representation of transferable securities through distributed ledger technologies such as blockchain, granting them full legal validity.
The role of the Land Registry in the blockchain era
In parallel, the Spanish Association of Land Registrars is exploring how to integrate blockchain technology into the registry system, although it is important to clarify the real scope of these initiatives. Current projects focus mainly on complementary applications such as digital management of the Building Book or improved traceability and accessibility of registry information. They do not aim to replace the fundamental pillars of the system: execution of public deeds before a notary and registration of ownership, which remain absolutely mandatory for the transfer of real rights over property. Registrars are firm in their institutional stance: blockchain can complement and streamline document management, but it cannot replace the legal control exercised by the registrar or the protection of third parties offered by the Land Registry — both essential components of the Spanish legal system. This position reflects the current limitation of the model: tokens circulate on the blockchain representing positions in SPVs or economic rights over them, but the actual ownership of the property remains anchored in the traditional registry system, held by the corporate vehicle, and any transfer of that ownership must still follow the conventional legal process with all its guarantees.
European regulation: ECSPR, MiCA and the DLT Pilot Regime
Spain also benefits from a European regulatory framework that is positioning the EU as a global leader in digital asset regulation. The European Crowdfunding Service Providers Regulation (ECSPR) harmonises the rules for crowdfunding platforms, allowing an authorised platform in one Member State to operate across the EU through the so-called “European passport”. The MiCA Regulation, which came fully into force on 30 December 2024, broadly regulates crypto-asset markets, setting obligations for both issuers and service providers. The DLT Pilot Regime (EU Regulation 2022/858) allows market infrastructures based on distributed ledger technology to operate under certain temporary exemptions, creating a controlled testing environment to assess the potential of these technologies in financial markets.
The Spanish regulator’s approach could be described as cautiously supportive: innovation is encouraged, but strict compliance with anti-money laundering, customer identification, and disclosure obligations is required to protect investors. This is not technological laissez-faire, but rather an effort to integrate innovation within a solid framework of legal guarantees.
Legal challenges and risks of real estate tokenisation
The risks of the SPV structure
The legal challenges that remain are significant and deserve attention. The SPV structure, while legally viable, introduces an additional layer of complexity and risk that must be clearly communicated to investors. Unlike direct ownership — where the investor holds real rights over the property enforceable against third parties — in the current tokenised model, investors hold positions in indirect forms of economic participation (shares, participative loans, credit rights) linked to the company that owns the property. This has important implications for corporate liability, taxation, and insolvency protection.
The disconnect between the on-chain and off-chain worlds
It is also essential to understand that the connection between the “on-chain” world (where tokens circulate) and the “off-chain” world (where property rights are recorded) is neither direct nor automatic. Transferring a token does not in itself alter the Land Registry: ownership of the property remains with the SPV regardless of who holds the tokens, and only a duly notarised and registered deed can change that ownership. The exploratory projects of the Land Registrars aim to improve efficiency in information management but do not alter this fundamental principle. As in any emerging market, it is essential to prevent fraudulent schemes that promise unrealistic returns or market tokens without proper legal backing.
Practical implications for investors and legal practitioners
For legal practitioners, real estate tokenisation may require adapting contracts, corporate bylaws, and financing structures to an environment where rights circulate digitally and in a decentralised manner. For investors, it offers an opportunity to diversify portfolios with smaller capital contributions and greater liquidity potential than traditional real estate investment, provided they understand that they are not acquiring direct ownership of the property but rather a financial position linked to the corporate structure that owns it. And for the wider economy, it could invigorate a real estate market worth trillions of euros by facilitating the entry of retail capital previously excluded from such investments.
The future of real estate tokenisation in Spain
This is an evolution that combines law, technology, and finance in an inseparable way. It is essential to understand that tokenisation is not a passing trend but a tool that, when properly used and regulated, can transform access to one of society’s most valuable assets — property. However, this transformation currently operates through intermediate corporate structures and indirect forms of economic participation, not through direct ownership as commercial language sometimes suggests. It certainly does not imply an immediate revolution of Spain’s land registration system, whose fundamental guarantees remain intact.
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.
Since the General Data Protection Regulation (GDPR) took effect in 2018, the European Union (EU) has granted adequacy status to only a limited number of jurisdictions — those whose data protection regimes are deemed to provide an “essentially equivalent” level of protection to that of the EU. The current list includes Andorra, Argentina, Canada (under PIPEDA), Faroe Islands, Guernsey, Isle of Man, Israel, Japan, Jersey, New Zealand, South Korea, Switzerland, Uruguay, the United Kingdom, and the United States (limited to companies certified under the Data Privacy Framework).
As of 5 September 2025, Brazil is on the verge of joining this exclusive group. The European Commission has issued a draft adequacy decision concluding that the Brazilian General Data Protection Law (Lei Geral de Proteção de Dados Pessoais – LGPD), in conjunction with Brazil’s broader legal and constitutional framework, offers protections that are essentially equivalent to those found in the GDPR. While Brazil’s rules offer somewhat more flexibility in specific areas of data processing, the foundational principles and safeguards are well-aligned with EU standards.
Once finalized, the adequacy decision will authorize the free flow of personal data from the EU to Brazil without the need for additional contractual clauses or technical safeguards. Such a development is not just regulatory — it also answers a core political argument made by LGPD advocates since its inception: that the absence of a comprehensive data protection framework was undermining Brazil’s international competitiveness by limiting data flows and discouraging investment. For businesses, the EU decision may finally mean the removal of a significant layer of compliance complexity — a development especially welcome by small and medium-sized enterprises engaged in cross-border trade or service provision. The draft is currently under review by the European Data Protection Board (EDPB) and the Member States of the EU.
The Commission’s assessment highlights several key aspects of Brazil’s data protection landscape. It begins by noting that the Brazilian Constitution expressly guarantees the right to privacy and the protection of personal data — a notable distinction among non-EU jurisdictions. These protections are further supported by Brazil’s ratification of the American Convention on Human Rights and its recognition of the jurisdiction of the Inter-American Court of Human Rights, reinforcing a commitment to fundamental rights and democratic oversight.
The LGPD mirrors the GDPR in many critical respects and defines its territorial scope clearly. It applies to: (i) data processing carried out within Brazilian territory, (ii) the offering of goods or services to individuals in Brazil, and (iii) data collected in Brazil, even if subsequently processed abroad. This aligns well with the extraterritorial provisions of the GDPR. The definitions of personal data, sensitive data, controller, and processor are materially similar, as are the key principles governing processing — including lawfulness, purpose limitation, data minimization, accuracy, transparency, and security. The law expressly excludes anonymized data from its scope and establishes specific exemptions for journalistic activities, public security, and scientific research.
Another strength is Brazil’s institutional framework. The National Data Protection Authority (ANPD) was recently transformed into an autonomous regulatory agency, enhancing its independence and technical capacity. The ANPD holds both regulatory and enforcement powers: it can issue binding regulations, impose administrative sanctions, and publish authoritative guidance. To date, it has issued key guidelines on topics such as consent, legitimate interest, the role of the Data Protection Officer (DPO), and security incident reporting. Internationally, the ANPD is an active participant in global data protection dialogue — it is a member of the Global Privacy Assembly and an official observer to the Council of Europe’s Convention 108.
The LGPD’s approach to international data transfers is also structurally aligned with the GDPR. It requires appropriate safeguards such as standard contractual clauses, allows for future adequacy decisions under a regime comparable to Article 45 of the GDPR, and includes detailed provisions for onward transfers and transit data — that is, data merely passing through Brazil without further processing. The rights of data subjects are robust and familiar to European practitioners: access, rectification, erasure, portability, and withdrawal of consent are guaranteed. Lawful bases for processing are also aligned — including consent, legal obligations, contract execution, and legitimate interest. Notably, the LGPD requires a documented balancing test when relying on legitimate interest, bringing additional accountability to this flexible legal basis.
Security incidents involving personal data must be notified to both the ANPD and affected data subjects when there is a significant risk of harm. The standard notification deadline is 72 hours, and the required content aligns closely with Articles 33 and 34 of the GDPR. The ANPD may also order public disclosure of incidents or require remedial measures, depending on the nature and scope of the breach.
Importantly, this process is not one-sided. In parallel to the European Commission’s adequacy decision, the ANPD is conducting its own adequacy assessment of the EU and EEA data protection frameworks. This process is regulated by the Brazilian Resolution CD/ANPD No. 19/2024, which governs international data transfers. Once the technical and legal evaluation is complete, the ANPD’s Board of Directors will issue a formal decision. This reciprocal move reflects Brazil’s commitment to mutual recognition and regulatory symmetry — a positive signal for companies on both sides of the Atlantic.
In conclusion: If confirmed, Brazil’s adequacy status will simplify international operations, reduce compliance costs, and expand opportunities for data-driven business and legal cooperation. For European lawyers advising SMEs with interests in Latin America, this development is a strategic signal: Brazil is emerging not just as a growing market, but as a legally compatible and data-safe jurisdiction for international partnerships.
Remember the USA – EU agreement on 15% tariffs? I wrote that with a negotiator like Trump the game is never over (article here) and—after the recent interlude featuring a threat of 100% tariffs on pharmaceuticals—the U.S. government has announced the imposition of an overall 107% duty on Italian pasta, which could take effect on January 1, 2026.
Where this new duty comes from
The antidumping investigation was launched by the U.S. Department of Commerce at the request of certain competing American companies and is based on a 1996 antidumping order that allows for periodic reviews of imports of Italian pasta. The Department of Commerce conducts these checks annually to assess whether Italian producers are selling pasta at prices lower than the U.S. domestic market, a practice known as “dumping.”
Companies involved in the investigation
The Department of Commerce selected two sample companies for in-depth analysis, defined as “mandatory respondents”: La Molisana and Pastificio Lucio Garofalo. According to the official document published by the U.S. administration, for the period from July 1, 2023 to June 30, 2024, both companies allegedly sold their products below market prices, resulting in the imposition of a duty of 91.74%.
U.S. authorities justified this percentage by claiming the two companies did not provide complete or compliant information as requested by the Department and were therefore insufficiently cooperative during the investigation. What is very important is that, in addition to the two companies directly examined, the additional 91.74% duty is also applied to numerous other Italian producers not individually reviewed. This methodology, while formally permitted under U.S. law as an exception, is being applied without any direct verification of the other companies.
Next steps in the procedure
Italy’s Ministry of Foreign Affairs moved immediately, formally intervening in the proceeding as an “interested party” through the Italian Embassy in Washington. The Foreign Ministry is working in close coordination with the companies concerned and, in concert with the European Commission, to persuade the U.S. Department to revise the provisional duties.
The two companies involved (La Molisana and Garofalo) can submit documentation to contest the dumping allegations. However, if dumping is confirmed, the Department of Commerce will instruct Customs to apply antidumping duties on goods sold and entered into U.S. commerce.
The preliminary nature of this determination means there is still room to change the decision before it becomes final.
Possible effective date
The new super-duty of 91.74%, which will be added to the existing 15% tariff for a total of 107%, is scheduled to take effect on January 1, 2026. This date therefore represents a crucial deadline for all ongoing diplomatic and legal actions.
If confirmed, the economic impact would be significant: in 2024, Italian pasta exports to the United States reached a value of €671 million according to Coldiretti, accounting for nearly 17% of the sector’s total exports. A 107% duty would risk seriously undermining competitiveness in one of the most important markets for Italian agri-food products.
What to do between now and January 1, 2026?
At this stage, the entry into force of the new duty depends on the outcome of the ongoing procedure: given what has happened in recent months, and the political use the U.S. administration has made of tariffs—well beyond their technical function—it is reasonable to be pessimistic.
So, what to do? In recent months we have seen companies react to the uncertainty over the fate of the tariffs in three ways:
- Some rushed to ship as many products as possible before the potential effective date of the duty;
- Some granted—upfront—discounts equivalent to the threatened duty, in case it came into force;
- Some suspended orders, pending definitive news on the impact of the duties.
These are all valid options, but other effective tools for managing the uncertainty caused by the flurry of announcements, negotiations, and threats from the U.S. administration should not be forgotten: the risk of new duties being introduced, or existing ones being increased, can be managed in the contract by agreeing with the U.S. importer how any tariff change will affect the product.
The parties can stipulate, for example, that the increase will be split equally; or that the importer will bear it beyond a certain threshold; or that if the duty exceeds a certain level, the contracts may be terminated. You can find a deeper dive in this article.
The only certainty is that trade relations with the U.S. will stay unpredictable for a long time, and it’s vital to carefully manage the risk factors involved in selling products there. Right now, the focus is on tariffs and prices, and I encourage you to take this chance to thoroughly review existing agreements and assess whether—and how—other important points are addressed that could entail significant liabilities: we discuss them, very practically, in this book.
A dedicated notary account in Brazil is a legal mechanism that brings greater security, transparency, and reliability to financial transactions. Regulated under Law 8.935/1994 and Provision No. 197/2025, this service allows notaries to receive, manage, and release funds only after contractual conditions have been fulfilled. By ensuring segregation of assets, traceability, and impartial oversight, dedicated notary accounts provide an effective escrow-like solution for real estate deals, mergers and acquisitions, import/export operations, high-value asset purchases, and complex commercial contracts. This tool not only reduces legal risks and potential disputes but also strengthens trust between parties by guaranteeing that payments are safeguarded until obligations are met.
The legal basis can be found in Law 8.935/1994, § 1 of art. 7-A, which allows notaries to receive, deposit, and manage amounts related to legal transactions, with transactions subject to objectively verifiable facts/conditions. Provision No. 197, dated June 13, 2025, regulates, at the national level, the service of notarial accounts linked to Notary Public Offices.
Practical applications: among others, in the following transactions:
- Real estate: guarantee that the down payment and settlement amounts will be secured in a specific account. This mitigates the risk of misappropriation of funds and ensures that the money will be released only after all contractual conditions have been met.
- M&A: the linked notarial account creates a standardized escrow mechanism for the payment of price/holdbacks/earn-outs and conditional obligations.
- Purchase and Sale of High-Value Movable Property: the linked account can be used to guarantee payment. The buyer deposits the amount and the seller knows that the money is safe, being released only after the transfer of ownership and delivery of the goods.
- Import and Export: the transaction amount can be deposited with the notary and released to the exporter only after confirmation of delivery of the goods in the destination country, for example.
- Guarantee of Obligations: In any contract that provides for the payment of a sum of money as a guarantee, the notary account can be used to provide greater security to the parties.
- Supply, EPC/turnkey, and construction contracts: performance retentions, milestone acceptance (commissioning, as-built, issuance of ART/CREA), and payment against formal acceptance.
- Contractual joint ventures and commercial partnerships: advances conditional on licenses, authorizations, or competitive approval, where applicable.
Reduction of Legal Risks: The use of linked accounts reduces the chances of litigation related to lack of clarity about the origin and destination of funds. Companies can clearly demonstrate that payments were made and held by an impartial and secure institution.
Operational structure: limited to banking entities affiliated with the CNB, which must ensure the segregation of assets, traceability through audit trails, and proof of all transactions. The authorization of the delegate requires prior accreditation and electronic registration of the essential details of the transaction and its conditions in the CNB system, with access restricted to the parties and the notary.
Specific Purpose: amounts received as payment, guarantee, or advance payment as a result of notarial acts must be deposited in a bank account linked to the specific act and may only be moved for the purpose for which they are intended.
Transparency and Traceability: With the linked notarial account, it is possible to clearly track the financial flow of each transaction, which increases transparency for all parties and for supervisory bodies.
Verification of conditions and release. Once the objective conditions have been met, the notary authorizes the transfer to the recipients and files the proof of verification. In the event of a dispute between the parties, the notary suspends any movement, draws up a notarial deed, and advises on a consensual or judicial solution, without deciding on the effectiveness/termination of the transaction; if the transaction is frustrated and no solution is found, the procedure is terminated and the amounts are returned to the depositor, in accordance with the agreed clauses.
Confidentiality and access. In transactions with a confidentiality clause, the notary public maintains confidentiality and does not issue certificates regarding the content of the transaction; documents are accessible only for correctional purposes or by court order.
Remuneration and costs. The notary’s remuneration for the notarial account service is paid by the financial institution under the terms of the agreement, and the transfer of additional costs to the user is prohibited, without prejudice to fees for any related notarial acts.
Given the significance of the influencer market (over €21 billion in 2023), which now encompasses all sectors, and with a view for transparency and consumer protection, France, with the law of June 9, 2023, proposed the world’s first regulation governing the activities of influencers, with the objective of defining and regulating influencer activities on social media platforms.
However, influencers are subject to multiple obligations stemming from various sources, necessitating the utmost vigilance, both in drafting influence agreements (between influencers and agencies or between influencers and advertisers) and in the behaviour they must adopt on social media or online platforms. This vigilance is particularly heightened as existing regulations do not cover the core of influencers’ activities, especially their status and remuneration, which remain subject to legal ambiguity, posing risks to advertisers as regulatory authorities’ scrutiny intensifies.
Key points to remember
- Influencers’ activity is subject to numerous regulations, including the law of June 9, 2023.
- This law not only regulates the drafting of influence contracts but also the influencer’s behaviour to ensure greater transparency for consumers.
- Every influencer whose audience includes French users is affected by the provisions of the law of June 9, 2023, even if they are not physically present in French territory.
- Both the law of June 9, 2023, and the “Digital Services Act,” as well as the proposed law on “fast fashion,” foresee increasing accountability for various actors in the commercial influence sector, particularly influencers and online platforms.
- Despite a plethora of regulations, the status and remuneration of influencers remain unaddressed issues that require special attention from advertisers engaging with influencers.
The law of June 9, 2023, regulating influencer activity
The definition of influencer professions
The law of June 9, 2023, provides two essential definitions for influencer activities:
- Influencers are defined as ‘natural or legal persons who, for consideration, mobilize their notoriety with their audience to communicate to the public, electronically, content aimed at promoting, directly or indirectly, goods, services, or any cause, engaging in commercial influence activities electronically.’
- The activity of an influencer agent is defined as ‘that which consists of representing, for consideration,’ the influencer or a possible agent ‘with the aim of promoting, for consideration, goods, services, or any cause‘ (article 7) The influencer agent must take ‘necessary measures to ensure the defense of the interests of the persons they represent, to avoid situations of conflict of interest, and to ensure the compliance of their activity‘ with the law of June 9, 2023.
The obligations imposed on commercial messages created by the influencer
The law sets forth obligations that influencers must adhere to regarding their publications:
- Mandatory particulars: When creating content, this law imposes an obligation on influencers to provide information to consumers, aiming for transparency towards their audience. Thus, influencers are required to clearly, legibly, and identifiably indicate on the influencer’s image or video, regardless of its format and throughout the entire viewing duration (according to modalities to be defined by decree):
– The mention “advertisement” or “commercial collaboration.” Violating this obligation constitutes deceptive commercial practice punishable by two years’ imprisonment and a fine of €300,000 (Article 5 of the law of June 9, 2023).
– The mention of “altered images” (modification by image processing methods aimed at refining or thickening the silhouette or modifying the appearance of the face) or “virtual images” (images created by artificial intelligence). Failure to do so may result in a one-year prison sentence and a fine of €4,500 (Article 5 of the law of June 9, 2023).
- Prohibited or regulated promotions: This law reminds certain prohibitions, subject to criminal and administrative sanctions, stemming from French law on the direct or indirect promotion of certain categories of products and services, under penalty of criminal or administrative sanctions. This includes the promotion of products and services related to:
– health: surgery, aesthetic medicine, therapeutic prescriptions, and nicotine products;
– non-domestic animals, unless it concerns an establishment authorized to hold them;
– financial: contracts, financial products, and services;
– sports-related: subscriptions to sports advice or predictions;
– crypto assets: if not from registered actors or have not received approval from the AMF;
– gambling: their promotion prohibited for those under 18 years old and regulated by law;
– professional training: their promotion is not prohibited but regulated.
The accountability of influencer behaviour
The law also holds influencers accountable from the contracting of their relationships and when they act as sellers:
- Regulation of commercial influence agreements: This law imposes, subject to nullity, from a certain threshold of influencer remuneration (defined by decree), the formalization in writing of the agreement between the advertiser and the influencer, but also, if applicable, between the influencer’s agent, and the mandatory stipulation of certain clauses (remuneration, mission description, etc.).
- Influencer responsibility as a cyber seller: Influencers engaging in drop shipping (selling products without handling their delivery, done by the supplier) must provide the buyer with all information in French as required by Article L. 221-5 of the Consumer Code about the product, such as its availability and legality (i.e., guarantee that the product is not counterfeit), applicable product warranty, and supplier identity. Additionally, influencers must ensure the proper delivery and receipt of products and, in case of default, compensate the buyer. Influencers are also logically subject to obligations regarding deceptive commercial practices (for more information, the DGCCRF website explain the dropshipping).
The accountability of other actors in the commercial influence ecosystem
Joint and several liability is set by law, for the advertiser, influencer, or influencer’s agent for damages caused to third parties in the execution of the commercial influence contract, allowing the victim of the damage to act against the most solvent party.
Furthermore, the law introduces accountability for online platforms by partially incorporating the European Regulation 2022/2065 on digital services (known as the “DSA“) of October 19, 2022.
French regulation and international influencers
Influencers established outside the European Union (including also Switzerland and the EEA) who promote products or services to a French audience must obtain professional liability insurance from an insurer established within the EU. They must also designate a legal or natural person providing “a form of representation” (SIC) within the EU. This representative (whose regime is not very clear) is remunerated to represent the influencer before administrative and judicial authorities and to ensure the compliance of the influencer’s activity with law of June 9, 2023.
Furthermore, according to law of June 9, 2023, when the contract binding the influencer (or their agency) aims to implement a commercial influence activity electronically “targeting in particular an audience established in French territory” (SIC), this contract should be exclusively subject to French law (including the Consumer Code, the Intellectual Property Code, and the law of June 9, 2023). According to this law, the absence of such a stipulation would be sanctioned by the nullity of the contract. Law of June 9, 2023, seems to be established as an overriding mandatory law capable of setting aside the choice of a foreign law.
However, the legitimacy (what about compliance with the definition of overriding mandatory rules established by Regulation Rome I?) and effectiveness (what if the contract specifies a foreign law and a foreign jurisdiction?) of such a legal provision can be questioned, notably due to its vague and general wording. In fact, it should be the activity deployed by the “foreign” influencer to their community in France that should be apprehended by French overriding mandatory rules, rather than the content of the agreement concluded with the advertiser (which itself could also be foreign, by the way).
The other regulations governing the activity of influencers
The European regulations
The DSA further holds influencers accountable because, in addition to the reporting mechanism imposed on platforms to report illicit content (thus identifying a failing influencer), platforms must ensure (and will therefore shift this responsibility to the influencer) the identification of commercial communications and specific transparency obligations towards consumers.
The «soft law»
As early as 2015, the Advertising Regulatory Authority (“ARPP”) issued recommendations on best practices for digital advertising. Similarly, in March 2023, the French Ministry of Economy published a “code of conduct” for influencers and content creators. In 2023, the European Commission launched a legal information platform for influencers. Although non-binding, these rules, in addition to existing regulations, serve as guidelines for both influencers and content creators, as well as for judicial and administrative authorities.
The special status of child influencers
The law of October 19, 2020, aimed at regulating the commercial exploitation of children’s images on online platforms, notably opens up the possibility for child influencers to be recognized as salaried workers. However, this law only targeted video-sharing platforms. Article 2 of the law of June 9, 2023, extended the provisions regarding child influencer labor introduced by the 2020 law to all online platforms. Finally, a recent law aimed at ensuring respect for the image rights of children was published on February 19, 2024, introducing a principle of joint and several responsibility of both parents in protecting the minor’s image rights.
The status and remuneration of influencers: uncertainty persists
Despite the diversity of regulations applicable to influencers, none address their status and remuneration.
The status of the influencer
In the absence of regulations governing the status of influencers, a legal ambiguity persists regarding whether the influencer should be considered an independent contractor, an employee (as is partly the case for models or artists), or even as a brand representative (i.e. commercial agent), depending on the missions contractually entrusted to the influencer.
The nature of the contract and the applicable social security regime stem from the missions assigned to the influencer:
- In the case of an employment contract, the influencer will fall under the general regime for employees and assimilated persons, based on Articles L. 311-2 or 311-3 of the French Social Security Code.
- In the case of a service contract, the influencer will fall under the regime for self-employed workers.
The existence of a relationship of subordination between the advertiser and the influencer typically determines the qualification of an employment contract. Subordination is generally characterized when the employer gives orders and directives, has the power to control and sanction, and the influencer follows these directives. However, some activities are subject to a presumption of an employment contract; this is the case (at least in part) for artist contracts under Article L. 7121-3 of the French Labor Code and model contracts under Article L. 7123-2 of the French Labor Code.
The remuneration of the influencer
The influencer can be remunerated in cash (fixed or proportional) and/or in kind (for example: receiving a product from the brand, invitations to private or public events, coverage of travel expenses, etc.). The influencer’s remuneration must be specified in the influencer agreement and is directly impacted by the influencer’s status, as certain obligations (minimum wage, payment of social security contributions, etc.) apply in the case of an employment contract.
Furthermore, the remuneration (for the influencer’s services) must be distinguished from that of the transfer of their copyrights or image rights, which are subject to separate remuneration in exchange for the IP rights transferred.
The influencers… in the spotlight
The law of June 9, 2023, grants the French authority (i.e. the Consumer Affairs, Competition and Fraud Prevention Agency, “DGCCRF”) new injunction powers (with reinforced penalties). This comes in addition to the recent creation of a “commercial influence squad“, within the DGCCRF, tasked with monitoring social networks, and responding to reports received through Signal Conso. The law provides for fines and the possibility of blocking content.
As early as August 2023, the DGCCRF issued warnings to several influencers to comply with the new regulations on commercial influence and imposed on them the obligation to publicly disclose their conviction for non-compliance with the new provisions regarding transparency to consumers on their own social networks, a heavy penalty for actors whose activity relies on their popularity (DGCCRF investigation on the commercial practices of influencers).
On February 14, 2024, the European Commission and the national consumer protection authorities of 22 EU member states, Norway, and Iceland published the results of an analysis conducted on 570 influencers (the so-called “clean-up operation” of 2023 on influencers): only one in five influencers consistently presented their commercial content as advertising.
In response to environmental, ethical, and quality concerns related to “fast fashion,” a draft law aiming to ban advertising for fast fashion brands, including advertising done by influencers (Proposal for a law aiming to reduce the environmental impact of the textile industry), was adopted by the National Assembly on first reading on March 14, 2024.
Lastly, the law of June 9, 2023, has been criticized by the European Commission, which considers that the law would contravene certain principles provided by EU law, notably the principle of “country of origin,” according to which the company providing a service in other EU countries is exclusively subject to the law of its country of establishment (principle initially provided for by the E-commerce Directive of June 8, 2000, and included in the DSA). Some of its provisions, particularly those concerning the application of French law to foreign influencers, could therefore be subject to forthcoming – and welcome – modifications.
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Agency and distribution agreements. Phrases to avoid when ending a business relationship without a written contract
2025年10月11日
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西班牙
- 机构
- 契约
- 分销协议
- 诉讼
Cross-border merger and acquisition (M&A) transactions are carefully structured. Lawyers negotiate risk allocation, manage regulatory exposure, and draft documents designed to withstand scrutiny across multiple jurisdictions. On paper, many of these transactions are sound.
And yet a surprising number of deals struggle to deliver their expected value.
When that happens, the problem isn’t in the paperwork. It’s in the people: Do they believe in the deal?
Belief starts with communication. If people don’t understand the deal, the documents won’t save it.
What Lawyers See vs. What Everyone Else Feels
For lawyers, a transaction is all about managing risk. Disclosure is deliberate. Regulatory exposure is controlled. Words matter, and for good reason.
For everyone else, it feels different.
Employees hear their company has been sold to a foreign buyer and start filling in the blanks. Customers wonder if priorities will change. Regulators look for patterns. Journalists hunt for a local angle.
These audiences are not reading the transaction documents. They are responding to fragments of information, hallway chatter, and media coverage.
The gap between legal precision and human interpretation is where many cross-border deals begin to drift.
Silence Is Not Neutral
Between announcement and closing, caution often turns into radio silence.
There are understandable reasons for this. Multiple disclosure regimes apply. Competition laws constrain what can be shared. Employment rules vary by jurisdiction. No one wants to say the wrong thing in the wrong place.
The problem? Silence rarely creates stability.
In the absence of credible information, people make up their own stories. These spread quickly inside the company and beyond. Once those narratives take hold, they’re hard to unwind, even when the official version finally comes out.
By the time integration teams are ready to engage, behaviour has already shifted. Trust has thinned. Momentum has slowed. Positions have hardened, and assumptions feel like facts.
One Deal, Many Interpretations
Cross-border transactions remove the safety net of shared assumptions.
What sounds confident in one country can come across as arrogant in another. An announcement that seems careful and responsible in one market may look evasive somewhere else. Expectations around consultation, transparency and leadership vary more than many deal teams expect.
That is why a single global message often falls flat.
The commercial logic needs to be consistent, but trust is built locally. That means understanding who people listen to in each market and what they are actually worried about.
When uncertainty sets in, people protect their turf. Roles get guarded. Silos harden. Decisions slow as teams focus on keeping influence instead of building something new.
When communication misses this, the impact is rarely dramatic at first. It shows up slowly, through disengagement, resistance and delay.
Employees Decide Earlier Than You Think
For employees, M&A feels personal long before it feels strategic.
They want to know how decisions will be made, whether local expertise still matters, and what the deal means for their job and future. They don’t expect certainty, but they do expect straight answers.
Vague reassurances can create more anxiety than simply acknowledging what is not yet known.
Managers sit at the centre of this dynamic. They are more trusted than corporate communications but often lack the tools to explain what the deal means in practice. When they lack clarity, uncertainty spreads quickly and becomes entrenched.
Change is rarely the problem. Employees’ fear of losing their role, influence, identity, or stability drives disengagement.
External Attention Changes the Equation
Cross-border deals attract public and political scrutiny that domestic transactions often do not.
Foreign ownership, jobs, and national interest are not abstract concerns. They shape how regulators act and how quickly questions escalate. Media expectations differ widely. In some places, restraint signals seriousness. In others, it looks suspicious.
Internal uncertainty has a way of becoming visible externally. Customers and partners often sense it before leadership does.
Why This Matters for Deal Counsel
For lawyers advising on cross-border M&A, communication is not a branding exercise. It is part of deal execution.
Poorly sequenced communication can complicate regulatory engagement. Inconsistent messaging can undermine management credibility. Prolonged silence can make integration harder than it needs to be.
Handled well, communication supports the legal strategy rather than undercutting it. It helps ensure that what can be said, and what cannot, aligns with how people actually receive and interpret information in different markets. It reduces friction instead of creating it.
The most effective deal teams treat communication as core infrastructure. They build it in early, tailor it to each market, and know that trust comes from what’s said, what’s acknowledged, and who delivers the message.
A simple test applies: If the people affected by the deal can’t explain, in their own words, why it makes sense, the communication hasn’t worked.
Cross-border M&A rarely fails because advisers lack skill. It fails because the human side gets addressed too late.
For lawyers navigating these deals, spotting communication risk early can mean the difference between a deal that just closes, and one that truly succeeds.
For more than 35 years as a commercial lawyer, I have seen how many of us, myself included, confused effective advice with immediate and exhaustive answers. Now I feel that the worlds of law and business are changing: it is not enough to know (more and more laws, more requirements, more contradictory rulings… and more noise), but rather to listen, accompany and facilitate decisions. And that is where acting also as an executive coach offers an extraordinarily useful framework.
Lawyers are expected to solve problems. Executive coaches, however, help others (within an ethical framework) to discover the answer for themselves. And this can be a source of enormous professional and client satisfaction. When clients are faced with a problem, they do not need a legal analysis, but rather clarity and perspective to decide… based on ‘their problem’, not ‘our solution’. Integrating executive coaching tools into our professional practice transforms legal conversations and advice into something more effective: a decision-making process in which we accompany the client from start to finish.
I can think of three areas where the legal advisor and the executive coach meet:
- The relationship with the client. Listen carefully before advising.
Plutarch said that ‘listening well is the basis of living well’. And sometimes the client is not so much looking for an answer as for clarity in order to make a decision. Listening beyond what they say (and what they don’t say) allows us to understand what concerns them. A question can open up more avenues than a lecture, which will most likely leave them cold. When we listen without rushing and without bias, we create a space for reflection that helps clients to organise, prioritise and make meaningful decisions. Meaningful… for them.
- Negotiation and mediation.
In these processes, we use coaching techniques to help defuse resistance and move from confrontation to understanding. The lawyer-coach facilitates the parties listening to each other and discovering what lies behind their demands. A negotiation can be unblocked when the other party is allowed to express themselves. Agreements cease to be mere transactions and become shared decisions, which are more stable and sustainable over time and less likely to be sources of conflict.
- Accompanying processes of change in the client and their organisation
The lawyer-coach can become not only the drafter of the agreement but also the facilitator of change. They help those involved to understand what is at stake and align decisions with their values and objectives by managing resistance. The solicitor ceases to be a mere ‘provider’ of services (who is often only called upon at the end of the process) and becomes a partner in reflection.
In short, I perceive that today we are required to practise differently: less technical and more human, less reactive and more transformative. Coaching techniques help: conscious listening, constructive feedback, clarity of purpose… they allow us to better manage conflict, stress and uncertainty. Coaching, of course, does not replace the law, but rather broadens it and provides it with tools. Now, artificial intelligence (much faster and potentially much more comprehensive and exhaustive) is displacing us from our habits. Perhaps this allows us to glimpse that lawyers should not only be experts in rules, but also facilitators of difficult conversations, someone capable of combining analysis and empathy, precision and presence. Someone who understands that their value lies in helping their clients avoid conflicts or resolve them in the way that best suits them. And that is where the lawyer-coach has a lot to contribute.
How real estate tokenisation works, what is the regulatory framework, and what rights investors actually acquire?
Real estate tokenisation, already present in Spain for several years, is no longer a futuristic promise but a tangible reality in the Spanish market. It represents more than just a technological innovation: it signifies a profound transformation in how we understand ownership, investment, and liquidity within the real estate sector — one of the most traditional and tightly regulated areas of our economy.
What is real estate tokenisation and how does it work?
In essence, to tokenise a property today means converting the economic rights associated with that asset into digital units that can circulate on blockchain-based platforms. Each token represents a fraction of those economic rights, allowing investors with more modest capital to access a market that has traditionally required substantial investments.
The role of smart contracts
Tokens operate through smart contracts that automatically execute the distribution of rental income or resale proceeds of that partial representation of the property, including any potential difference in value, eliminating intermediaries and providing transparency to the process. This automation is not merely cosmetic: it reduces operational costs, speeds up transactions, and potentially increases the liquidity of assets that have historically been among the least liquid in the market.
The legal reality: what is actually tokenised in Spain
It is essential to clarify from the outset a key point often blurred by marketing discourse: in practice, real estate tokenisation projects in Spain do not tokenise the property itself but rather the economic rights linked to a corporate vehicle (usually a special purpose vehicle, or SPV) that owns the property. Spanish law only allows the tokenisation of shares in joint-stock companies (sociedades anónimas) using distributed ledger technology; shares in limited liability companies (sociedades limitadas) cannot be tokenised. This means that if the SPV is a limited liability company, its shares cannot be directly tokenised — only other instruments such as participative loans or credit rights over income streams can be represented as tokens. Only if the SPV is incorporated as a joint-stock company is it legally possible to tokenise its shares.
What rights does a real estate token investor actually acquire?
An investor who acquires a token does not become a direct co-owner of the property. Depending on the structure chosen, they may become a shareholder in a tokenised joint-stock company that owns the property or a holder of economic rights derived from participative loans or other indirect forms of economic participation issued by the SPV that owns the asset. The distinction is crucial: if the company faces solvency issues or bankruptcy, the value of the token collapses with it, and the investor cannot exercise any direct real rights over the property.
Spanish law, rooted in centuries of land registry tradition, does not currently allow the transfer of real property rights through the mere transfer of tokens; a public deed and registration are required for the transfer to be effective against third parties. The SPV structure is therefore a compromise between technological possibilities and the demands of the current legal framework.
Regulatory framework for real estate tokenisation in Spain
CNMV authorisation and the 2023 Securities Market Law
The Spanish regulator has begun to establish a legal foundation for this technology to develop within a secure framework. In 2023, the Spanish National Securities Market Commission (CNMV) authorised Adventurees Capital PFP as the first crowdfunding platform to issue tokenised securities — a milestone in the convergence of crowdfunding and blockchain. This authorisation was accompanied by the approval of Law 6/2023 on the Securities Market, which expressly recognises the representation of transferable securities through distributed ledger technologies such as blockchain, granting them full legal validity.
The role of the Land Registry in the blockchain era
In parallel, the Spanish Association of Land Registrars is exploring how to integrate blockchain technology into the registry system, although it is important to clarify the real scope of these initiatives. Current projects focus mainly on complementary applications such as digital management of the Building Book or improved traceability and accessibility of registry information. They do not aim to replace the fundamental pillars of the system: execution of public deeds before a notary and registration of ownership, which remain absolutely mandatory for the transfer of real rights over property. Registrars are firm in their institutional stance: blockchain can complement and streamline document management, but it cannot replace the legal control exercised by the registrar or the protection of third parties offered by the Land Registry — both essential components of the Spanish legal system. This position reflects the current limitation of the model: tokens circulate on the blockchain representing positions in SPVs or economic rights over them, but the actual ownership of the property remains anchored in the traditional registry system, held by the corporate vehicle, and any transfer of that ownership must still follow the conventional legal process with all its guarantees.
European regulation: ECSPR, MiCA and the DLT Pilot Regime
Spain also benefits from a European regulatory framework that is positioning the EU as a global leader in digital asset regulation. The European Crowdfunding Service Providers Regulation (ECSPR) harmonises the rules for crowdfunding platforms, allowing an authorised platform in one Member State to operate across the EU through the so-called “European passport”. The MiCA Regulation, which came fully into force on 30 December 2024, broadly regulates crypto-asset markets, setting obligations for both issuers and service providers. The DLT Pilot Regime (EU Regulation 2022/858) allows market infrastructures based on distributed ledger technology to operate under certain temporary exemptions, creating a controlled testing environment to assess the potential of these technologies in financial markets.
The Spanish regulator’s approach could be described as cautiously supportive: innovation is encouraged, but strict compliance with anti-money laundering, customer identification, and disclosure obligations is required to protect investors. This is not technological laissez-faire, but rather an effort to integrate innovation within a solid framework of legal guarantees.
Legal challenges and risks of real estate tokenisation
The risks of the SPV structure
The legal challenges that remain are significant and deserve attention. The SPV structure, while legally viable, introduces an additional layer of complexity and risk that must be clearly communicated to investors. Unlike direct ownership — where the investor holds real rights over the property enforceable against third parties — in the current tokenised model, investors hold positions in indirect forms of economic participation (shares, participative loans, credit rights) linked to the company that owns the property. This has important implications for corporate liability, taxation, and insolvency protection.
The disconnect between the on-chain and off-chain worlds
It is also essential to understand that the connection between the “on-chain” world (where tokens circulate) and the “off-chain” world (where property rights are recorded) is neither direct nor automatic. Transferring a token does not in itself alter the Land Registry: ownership of the property remains with the SPV regardless of who holds the tokens, and only a duly notarised and registered deed can change that ownership. The exploratory projects of the Land Registrars aim to improve efficiency in information management but do not alter this fundamental principle. As in any emerging market, it is essential to prevent fraudulent schemes that promise unrealistic returns or market tokens without proper legal backing.
Practical implications for investors and legal practitioners
For legal practitioners, real estate tokenisation may require adapting contracts, corporate bylaws, and financing structures to an environment where rights circulate digitally and in a decentralised manner. For investors, it offers an opportunity to diversify portfolios with smaller capital contributions and greater liquidity potential than traditional real estate investment, provided they understand that they are not acquiring direct ownership of the property but rather a financial position linked to the corporate structure that owns it. And for the wider economy, it could invigorate a real estate market worth trillions of euros by facilitating the entry of retail capital previously excluded from such investments.
The future of real estate tokenisation in Spain
This is an evolution that combines law, technology, and finance in an inseparable way. It is essential to understand that tokenisation is not a passing trend but a tool that, when properly used and regulated, can transform access to one of society’s most valuable assets — property. However, this transformation currently operates through intermediate corporate structures and indirect forms of economic participation, not through direct ownership as commercial language sometimes suggests. It certainly does not imply an immediate revolution of Spain’s land registration system, whose fundamental guarantees remain intact.
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.
Since the General Data Protection Regulation (GDPR) took effect in 2018, the European Union (EU) has granted adequacy status to only a limited number of jurisdictions — those whose data protection regimes are deemed to provide an “essentially equivalent” level of protection to that of the EU. The current list includes Andorra, Argentina, Canada (under PIPEDA), Faroe Islands, Guernsey, Isle of Man, Israel, Japan, Jersey, New Zealand, South Korea, Switzerland, Uruguay, the United Kingdom, and the United States (limited to companies certified under the Data Privacy Framework).
As of 5 September 2025, Brazil is on the verge of joining this exclusive group. The European Commission has issued a draft adequacy decision concluding that the Brazilian General Data Protection Law (Lei Geral de Proteção de Dados Pessoais – LGPD), in conjunction with Brazil’s broader legal and constitutional framework, offers protections that are essentially equivalent to those found in the GDPR. While Brazil’s rules offer somewhat more flexibility in specific areas of data processing, the foundational principles and safeguards are well-aligned with EU standards.
Once finalized, the adequacy decision will authorize the free flow of personal data from the EU to Brazil without the need for additional contractual clauses or technical safeguards. Such a development is not just regulatory — it also answers a core political argument made by LGPD advocates since its inception: that the absence of a comprehensive data protection framework was undermining Brazil’s international competitiveness by limiting data flows and discouraging investment. For businesses, the EU decision may finally mean the removal of a significant layer of compliance complexity — a development especially welcome by small and medium-sized enterprises engaged in cross-border trade or service provision. The draft is currently under review by the European Data Protection Board (EDPB) and the Member States of the EU.
The Commission’s assessment highlights several key aspects of Brazil’s data protection landscape. It begins by noting that the Brazilian Constitution expressly guarantees the right to privacy and the protection of personal data — a notable distinction among non-EU jurisdictions. These protections are further supported by Brazil’s ratification of the American Convention on Human Rights and its recognition of the jurisdiction of the Inter-American Court of Human Rights, reinforcing a commitment to fundamental rights and democratic oversight.
The LGPD mirrors the GDPR in many critical respects and defines its territorial scope clearly. It applies to: (i) data processing carried out within Brazilian territory, (ii) the offering of goods or services to individuals in Brazil, and (iii) data collected in Brazil, even if subsequently processed abroad. This aligns well with the extraterritorial provisions of the GDPR. The definitions of personal data, sensitive data, controller, and processor are materially similar, as are the key principles governing processing — including lawfulness, purpose limitation, data minimization, accuracy, transparency, and security. The law expressly excludes anonymized data from its scope and establishes specific exemptions for journalistic activities, public security, and scientific research.
Another strength is Brazil’s institutional framework. The National Data Protection Authority (ANPD) was recently transformed into an autonomous regulatory agency, enhancing its independence and technical capacity. The ANPD holds both regulatory and enforcement powers: it can issue binding regulations, impose administrative sanctions, and publish authoritative guidance. To date, it has issued key guidelines on topics such as consent, legitimate interest, the role of the Data Protection Officer (DPO), and security incident reporting. Internationally, the ANPD is an active participant in global data protection dialogue — it is a member of the Global Privacy Assembly and an official observer to the Council of Europe’s Convention 108.
The LGPD’s approach to international data transfers is also structurally aligned with the GDPR. It requires appropriate safeguards such as standard contractual clauses, allows for future adequacy decisions under a regime comparable to Article 45 of the GDPR, and includes detailed provisions for onward transfers and transit data — that is, data merely passing through Brazil without further processing. The rights of data subjects are robust and familiar to European practitioners: access, rectification, erasure, portability, and withdrawal of consent are guaranteed. Lawful bases for processing are also aligned — including consent, legal obligations, contract execution, and legitimate interest. Notably, the LGPD requires a documented balancing test when relying on legitimate interest, bringing additional accountability to this flexible legal basis.
Security incidents involving personal data must be notified to both the ANPD and affected data subjects when there is a significant risk of harm. The standard notification deadline is 72 hours, and the required content aligns closely with Articles 33 and 34 of the GDPR. The ANPD may also order public disclosure of incidents or require remedial measures, depending on the nature and scope of the breach.
Importantly, this process is not one-sided. In parallel to the European Commission’s adequacy decision, the ANPD is conducting its own adequacy assessment of the EU and EEA data protection frameworks. This process is regulated by the Brazilian Resolution CD/ANPD No. 19/2024, which governs international data transfers. Once the technical and legal evaluation is complete, the ANPD’s Board of Directors will issue a formal decision. This reciprocal move reflects Brazil’s commitment to mutual recognition and regulatory symmetry — a positive signal for companies on both sides of the Atlantic.
In conclusion: If confirmed, Brazil’s adequacy status will simplify international operations, reduce compliance costs, and expand opportunities for data-driven business and legal cooperation. For European lawyers advising SMEs with interests in Latin America, this development is a strategic signal: Brazil is emerging not just as a growing market, but as a legally compatible and data-safe jurisdiction for international partnerships.
Remember the USA – EU agreement on 15% tariffs? I wrote that with a negotiator like Trump the game is never over (article here) and—after the recent interlude featuring a threat of 100% tariffs on pharmaceuticals—the U.S. government has announced the imposition of an overall 107% duty on Italian pasta, which could take effect on January 1, 2026.
Where this new duty comes from
The antidumping investigation was launched by the U.S. Department of Commerce at the request of certain competing American companies and is based on a 1996 antidumping order that allows for periodic reviews of imports of Italian pasta. The Department of Commerce conducts these checks annually to assess whether Italian producers are selling pasta at prices lower than the U.S. domestic market, a practice known as “dumping.”
Companies involved in the investigation
The Department of Commerce selected two sample companies for in-depth analysis, defined as “mandatory respondents”: La Molisana and Pastificio Lucio Garofalo. According to the official document published by the U.S. administration, for the period from July 1, 2023 to June 30, 2024, both companies allegedly sold their products below market prices, resulting in the imposition of a duty of 91.74%.
U.S. authorities justified this percentage by claiming the two companies did not provide complete or compliant information as requested by the Department and were therefore insufficiently cooperative during the investigation. What is very important is that, in addition to the two companies directly examined, the additional 91.74% duty is also applied to numerous other Italian producers not individually reviewed. This methodology, while formally permitted under U.S. law as an exception, is being applied without any direct verification of the other companies.
Next steps in the procedure
Italy’s Ministry of Foreign Affairs moved immediately, formally intervening in the proceeding as an “interested party” through the Italian Embassy in Washington. The Foreign Ministry is working in close coordination with the companies concerned and, in concert with the European Commission, to persuade the U.S. Department to revise the provisional duties.
The two companies involved (La Molisana and Garofalo) can submit documentation to contest the dumping allegations. However, if dumping is confirmed, the Department of Commerce will instruct Customs to apply antidumping duties on goods sold and entered into U.S. commerce.
The preliminary nature of this determination means there is still room to change the decision before it becomes final.
Possible effective date
The new super-duty of 91.74%, which will be added to the existing 15% tariff for a total of 107%, is scheduled to take effect on January 1, 2026. This date therefore represents a crucial deadline for all ongoing diplomatic and legal actions.
If confirmed, the economic impact would be significant: in 2024, Italian pasta exports to the United States reached a value of €671 million according to Coldiretti, accounting for nearly 17% of the sector’s total exports. A 107% duty would risk seriously undermining competitiveness in one of the most important markets for Italian agri-food products.
What to do between now and January 1, 2026?
At this stage, the entry into force of the new duty depends on the outcome of the ongoing procedure: given what has happened in recent months, and the political use the U.S. administration has made of tariffs—well beyond their technical function—it is reasonable to be pessimistic.
So, what to do? In recent months we have seen companies react to the uncertainty over the fate of the tariffs in three ways:
- Some rushed to ship as many products as possible before the potential effective date of the duty;
- Some granted—upfront—discounts equivalent to the threatened duty, in case it came into force;
- Some suspended orders, pending definitive news on the impact of the duties.
These are all valid options, but other effective tools for managing the uncertainty caused by the flurry of announcements, negotiations, and threats from the U.S. administration should not be forgotten: the risk of new duties being introduced, or existing ones being increased, can be managed in the contract by agreeing with the U.S. importer how any tariff change will affect the product.
The parties can stipulate, for example, that the increase will be split equally; or that the importer will bear it beyond a certain threshold; or that if the duty exceeds a certain level, the contracts may be terminated. You can find a deeper dive in this article.
The only certainty is that trade relations with the U.S. will stay unpredictable for a long time, and it’s vital to carefully manage the risk factors involved in selling products there. Right now, the focus is on tariffs and prices, and I encourage you to take this chance to thoroughly review existing agreements and assess whether—and how—other important points are addressed that could entail significant liabilities: we discuss them, very practically, in this book.
A dedicated notary account in Brazil is a legal mechanism that brings greater security, transparency, and reliability to financial transactions. Regulated under Law 8.935/1994 and Provision No. 197/2025, this service allows notaries to receive, manage, and release funds only after contractual conditions have been fulfilled. By ensuring segregation of assets, traceability, and impartial oversight, dedicated notary accounts provide an effective escrow-like solution for real estate deals, mergers and acquisitions, import/export operations, high-value asset purchases, and complex commercial contracts. This tool not only reduces legal risks and potential disputes but also strengthens trust between parties by guaranteeing that payments are safeguarded until obligations are met.
The legal basis can be found in Law 8.935/1994, § 1 of art. 7-A, which allows notaries to receive, deposit, and manage amounts related to legal transactions, with transactions subject to objectively verifiable facts/conditions. Provision No. 197, dated June 13, 2025, regulates, at the national level, the service of notarial accounts linked to Notary Public Offices.
Practical applications: among others, in the following transactions:
- Real estate: guarantee that the down payment and settlement amounts will be secured in a specific account. This mitigates the risk of misappropriation of funds and ensures that the money will be released only after all contractual conditions have been met.
- M&A: the linked notarial account creates a standardized escrow mechanism for the payment of price/holdbacks/earn-outs and conditional obligations.
- Purchase and Sale of High-Value Movable Property: the linked account can be used to guarantee payment. The buyer deposits the amount and the seller knows that the money is safe, being released only after the transfer of ownership and delivery of the goods.
- Import and Export: the transaction amount can be deposited with the notary and released to the exporter only after confirmation of delivery of the goods in the destination country, for example.
- Guarantee of Obligations: In any contract that provides for the payment of a sum of money as a guarantee, the notary account can be used to provide greater security to the parties.
- Supply, EPC/turnkey, and construction contracts: performance retentions, milestone acceptance (commissioning, as-built, issuance of ART/CREA), and payment against formal acceptance.
- Contractual joint ventures and commercial partnerships: advances conditional on licenses, authorizations, or competitive approval, where applicable.
Reduction of Legal Risks: The use of linked accounts reduces the chances of litigation related to lack of clarity about the origin and destination of funds. Companies can clearly demonstrate that payments were made and held by an impartial and secure institution.
Operational structure: limited to banking entities affiliated with the CNB, which must ensure the segregation of assets, traceability through audit trails, and proof of all transactions. The authorization of the delegate requires prior accreditation and electronic registration of the essential details of the transaction and its conditions in the CNB system, with access restricted to the parties and the notary.
Specific Purpose: amounts received as payment, guarantee, or advance payment as a result of notarial acts must be deposited in a bank account linked to the specific act and may only be moved for the purpose for which they are intended.
Transparency and Traceability: With the linked notarial account, it is possible to clearly track the financial flow of each transaction, which increases transparency for all parties and for supervisory bodies.
Verification of conditions and release. Once the objective conditions have been met, the notary authorizes the transfer to the recipients and files the proof of verification. In the event of a dispute between the parties, the notary suspends any movement, draws up a notarial deed, and advises on a consensual or judicial solution, without deciding on the effectiveness/termination of the transaction; if the transaction is frustrated and no solution is found, the procedure is terminated and the amounts are returned to the depositor, in accordance with the agreed clauses.
Confidentiality and access. In transactions with a confidentiality clause, the notary public maintains confidentiality and does not issue certificates regarding the content of the transaction; documents are accessible only for correctional purposes or by court order.
Remuneration and costs. The notary’s remuneration for the notarial account service is paid by the financial institution under the terms of the agreement, and the transfer of additional costs to the user is prohibited, without prejudice to fees for any related notarial acts.
Given the significance of the influencer market (over €21 billion in 2023), which now encompasses all sectors, and with a view for transparency and consumer protection, France, with the law of June 9, 2023, proposed the world’s first regulation governing the activities of influencers, with the objective of defining and regulating influencer activities on social media platforms.
However, influencers are subject to multiple obligations stemming from various sources, necessitating the utmost vigilance, both in drafting influence agreements (between influencers and agencies or between influencers and advertisers) and in the behaviour they must adopt on social media or online platforms. This vigilance is particularly heightened as existing regulations do not cover the core of influencers’ activities, especially their status and remuneration, which remain subject to legal ambiguity, posing risks to advertisers as regulatory authorities’ scrutiny intensifies.
Key points to remember
- Influencers’ activity is subject to numerous regulations, including the law of June 9, 2023.
- This law not only regulates the drafting of influence contracts but also the influencer’s behaviour to ensure greater transparency for consumers.
- Every influencer whose audience includes French users is affected by the provisions of the law of June 9, 2023, even if they are not physically present in French territory.
- Both the law of June 9, 2023, and the “Digital Services Act,” as well as the proposed law on “fast fashion,” foresee increasing accountability for various actors in the commercial influence sector, particularly influencers and online platforms.
- Despite a plethora of regulations, the status and remuneration of influencers remain unaddressed issues that require special attention from advertisers engaging with influencers.
The law of June 9, 2023, regulating influencer activity
The definition of influencer professions
The law of June 9, 2023, provides two essential definitions for influencer activities:
- Influencers are defined as ‘natural or legal persons who, for consideration, mobilize their notoriety with their audience to communicate to the public, electronically, content aimed at promoting, directly or indirectly, goods, services, or any cause, engaging in commercial influence activities electronically.’
- The activity of an influencer agent is defined as ‘that which consists of representing, for consideration,’ the influencer or a possible agent ‘with the aim of promoting, for consideration, goods, services, or any cause‘ (article 7) The influencer agent must take ‘necessary measures to ensure the defense of the interests of the persons they represent, to avoid situations of conflict of interest, and to ensure the compliance of their activity‘ with the law of June 9, 2023.
The obligations imposed on commercial messages created by the influencer
The law sets forth obligations that influencers must adhere to regarding their publications:
- Mandatory particulars: When creating content, this law imposes an obligation on influencers to provide information to consumers, aiming for transparency towards their audience. Thus, influencers are required to clearly, legibly, and identifiably indicate on the influencer’s image or video, regardless of its format and throughout the entire viewing duration (according to modalities to be defined by decree):
– The mention “advertisement” or “commercial collaboration.” Violating this obligation constitutes deceptive commercial practice punishable by two years’ imprisonment and a fine of €300,000 (Article 5 of the law of June 9, 2023).
– The mention of “altered images” (modification by image processing methods aimed at refining or thickening the silhouette or modifying the appearance of the face) or “virtual images” (images created by artificial intelligence). Failure to do so may result in a one-year prison sentence and a fine of €4,500 (Article 5 of the law of June 9, 2023).
- Prohibited or regulated promotions: This law reminds certain prohibitions, subject to criminal and administrative sanctions, stemming from French law on the direct or indirect promotion of certain categories of products and services, under penalty of criminal or administrative sanctions. This includes the promotion of products and services related to:
– health: surgery, aesthetic medicine, therapeutic prescriptions, and nicotine products;
– non-domestic animals, unless it concerns an establishment authorized to hold them;
– financial: contracts, financial products, and services;
– sports-related: subscriptions to sports advice or predictions;
– crypto assets: if not from registered actors or have not received approval from the AMF;
– gambling: their promotion prohibited for those under 18 years old and regulated by law;
– professional training: their promotion is not prohibited but regulated.
The accountability of influencer behaviour
The law also holds influencers accountable from the contracting of their relationships and when they act as sellers:
- Regulation of commercial influence agreements: This law imposes, subject to nullity, from a certain threshold of influencer remuneration (defined by decree), the formalization in writing of the agreement between the advertiser and the influencer, but also, if applicable, between the influencer’s agent, and the mandatory stipulation of certain clauses (remuneration, mission description, etc.).
- Influencer responsibility as a cyber seller: Influencers engaging in drop shipping (selling products without handling their delivery, done by the supplier) must provide the buyer with all information in French as required by Article L. 221-5 of the Consumer Code about the product, such as its availability and legality (i.e., guarantee that the product is not counterfeit), applicable product warranty, and supplier identity. Additionally, influencers must ensure the proper delivery and receipt of products and, in case of default, compensate the buyer. Influencers are also logically subject to obligations regarding deceptive commercial practices (for more information, the DGCCRF website explain the dropshipping).
The accountability of other actors in the commercial influence ecosystem
Joint and several liability is set by law, for the advertiser, influencer, or influencer’s agent for damages caused to third parties in the execution of the commercial influence contract, allowing the victim of the damage to act against the most solvent party.
Furthermore, the law introduces accountability for online platforms by partially incorporating the European Regulation 2022/2065 on digital services (known as the “DSA“) of October 19, 2022.
French regulation and international influencers
Influencers established outside the European Union (including also Switzerland and the EEA) who promote products or services to a French audience must obtain professional liability insurance from an insurer established within the EU. They must also designate a legal or natural person providing “a form of representation” (SIC) within the EU. This representative (whose regime is not very clear) is remunerated to represent the influencer before administrative and judicial authorities and to ensure the compliance of the influencer’s activity with law of June 9, 2023.
Furthermore, according to law of June 9, 2023, when the contract binding the influencer (or their agency) aims to implement a commercial influence activity electronically “targeting in particular an audience established in French territory” (SIC), this contract should be exclusively subject to French law (including the Consumer Code, the Intellectual Property Code, and the law of June 9, 2023). According to this law, the absence of such a stipulation would be sanctioned by the nullity of the contract. Law of June 9, 2023, seems to be established as an overriding mandatory law capable of setting aside the choice of a foreign law.
However, the legitimacy (what about compliance with the definition of overriding mandatory rules established by Regulation Rome I?) and effectiveness (what if the contract specifies a foreign law and a foreign jurisdiction?) of such a legal provision can be questioned, notably due to its vague and general wording. In fact, it should be the activity deployed by the “foreign” influencer to their community in France that should be apprehended by French overriding mandatory rules, rather than the content of the agreement concluded with the advertiser (which itself could also be foreign, by the way).
The other regulations governing the activity of influencers
The European regulations
The DSA further holds influencers accountable because, in addition to the reporting mechanism imposed on platforms to report illicit content (thus identifying a failing influencer), platforms must ensure (and will therefore shift this responsibility to the influencer) the identification of commercial communications and specific transparency obligations towards consumers.
The «soft law»
As early as 2015, the Advertising Regulatory Authority (“ARPP”) issued recommendations on best practices for digital advertising. Similarly, in March 2023, the French Ministry of Economy published a “code of conduct” for influencers and content creators. In 2023, the European Commission launched a legal information platform for influencers. Although non-binding, these rules, in addition to existing regulations, serve as guidelines for both influencers and content creators, as well as for judicial and administrative authorities.
The special status of child influencers
The law of October 19, 2020, aimed at regulating the commercial exploitation of children’s images on online platforms, notably opens up the possibility for child influencers to be recognized as salaried workers. However, this law only targeted video-sharing platforms. Article 2 of the law of June 9, 2023, extended the provisions regarding child influencer labor introduced by the 2020 law to all online platforms. Finally, a recent law aimed at ensuring respect for the image rights of children was published on February 19, 2024, introducing a principle of joint and several responsibility of both parents in protecting the minor’s image rights.
The status and remuneration of influencers: uncertainty persists
Despite the diversity of regulations applicable to influencers, none address their status and remuneration.
The status of the influencer
In the absence of regulations governing the status of influencers, a legal ambiguity persists regarding whether the influencer should be considered an independent contractor, an employee (as is partly the case for models or artists), or even as a brand representative (i.e. commercial agent), depending on the missions contractually entrusted to the influencer.
The nature of the contract and the applicable social security regime stem from the missions assigned to the influencer:
- In the case of an employment contract, the influencer will fall under the general regime for employees and assimilated persons, based on Articles L. 311-2 or 311-3 of the French Social Security Code.
- In the case of a service contract, the influencer will fall under the regime for self-employed workers.
The existence of a relationship of subordination between the advertiser and the influencer typically determines the qualification of an employment contract. Subordination is generally characterized when the employer gives orders and directives, has the power to control and sanction, and the influencer follows these directives. However, some activities are subject to a presumption of an employment contract; this is the case (at least in part) for artist contracts under Article L. 7121-3 of the French Labor Code and model contracts under Article L. 7123-2 of the French Labor Code.
The remuneration of the influencer
The influencer can be remunerated in cash (fixed or proportional) and/or in kind (for example: receiving a product from the brand, invitations to private or public events, coverage of travel expenses, etc.). The influencer’s remuneration must be specified in the influencer agreement and is directly impacted by the influencer’s status, as certain obligations (minimum wage, payment of social security contributions, etc.) apply in the case of an employment contract.
Furthermore, the remuneration (for the influencer’s services) must be distinguished from that of the transfer of their copyrights or image rights, which are subject to separate remuneration in exchange for the IP rights transferred.
The influencers… in the spotlight
The law of June 9, 2023, grants the French authority (i.e. the Consumer Affairs, Competition and Fraud Prevention Agency, “DGCCRF”) new injunction powers (with reinforced penalties). This comes in addition to the recent creation of a “commercial influence squad“, within the DGCCRF, tasked with monitoring social networks, and responding to reports received through Signal Conso. The law provides for fines and the possibility of blocking content.
As early as August 2023, the DGCCRF issued warnings to several influencers to comply with the new regulations on commercial influence and imposed on them the obligation to publicly disclose their conviction for non-compliance with the new provisions regarding transparency to consumers on their own social networks, a heavy penalty for actors whose activity relies on their popularity (DGCCRF investigation on the commercial practices of influencers).
On February 14, 2024, the European Commission and the national consumer protection authorities of 22 EU member states, Norway, and Iceland published the results of an analysis conducted on 570 influencers (the so-called “clean-up operation” of 2023 on influencers): only one in five influencers consistently presented their commercial content as advertising.
In response to environmental, ethical, and quality concerns related to “fast fashion,” a draft law aiming to ban advertising for fast fashion brands, including advertising done by influencers (Proposal for a law aiming to reduce the environmental impact of the textile industry), was adopted by the National Assembly on first reading on March 14, 2024.
Lastly, the law of June 9, 2023, has been criticized by the European Commission, which considers that the law would contravene certain principles provided by EU law, notably the principle of “country of origin,” according to which the company providing a service in other EU countries is exclusively subject to the law of its country of establishment (principle initially provided for by the E-commerce Directive of June 8, 2000, and included in the DSA). Some of its provisions, particularly those concerning the application of French law to foreign influencers, could therefore be subject to forthcoming – and welcome – modifications.
写信给 Ignacio
Brazil Set to Join the GDPR Adequacy Club
2025年10月11日
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巴西
- 契约
- 隐私与数据保护
Cross-border merger and acquisition (M&A) transactions are carefully structured. Lawyers negotiate risk allocation, manage regulatory exposure, and draft documents designed to withstand scrutiny across multiple jurisdictions. On paper, many of these transactions are sound.
And yet a surprising number of deals struggle to deliver their expected value.
When that happens, the problem isn’t in the paperwork. It’s in the people: Do they believe in the deal?
Belief starts with communication. If people don’t understand the deal, the documents won’t save it.
What Lawyers See vs. What Everyone Else Feels
For lawyers, a transaction is all about managing risk. Disclosure is deliberate. Regulatory exposure is controlled. Words matter, and for good reason.
For everyone else, it feels different.
Employees hear their company has been sold to a foreign buyer and start filling in the blanks. Customers wonder if priorities will change. Regulators look for patterns. Journalists hunt for a local angle.
These audiences are not reading the transaction documents. They are responding to fragments of information, hallway chatter, and media coverage.
The gap between legal precision and human interpretation is where many cross-border deals begin to drift.
Silence Is Not Neutral
Between announcement and closing, caution often turns into radio silence.
There are understandable reasons for this. Multiple disclosure regimes apply. Competition laws constrain what can be shared. Employment rules vary by jurisdiction. No one wants to say the wrong thing in the wrong place.
The problem? Silence rarely creates stability.
In the absence of credible information, people make up their own stories. These spread quickly inside the company and beyond. Once those narratives take hold, they’re hard to unwind, even when the official version finally comes out.
By the time integration teams are ready to engage, behaviour has already shifted. Trust has thinned. Momentum has slowed. Positions have hardened, and assumptions feel like facts.
One Deal, Many Interpretations
Cross-border transactions remove the safety net of shared assumptions.
What sounds confident in one country can come across as arrogant in another. An announcement that seems careful and responsible in one market may look evasive somewhere else. Expectations around consultation, transparency and leadership vary more than many deal teams expect.
That is why a single global message often falls flat.
The commercial logic needs to be consistent, but trust is built locally. That means understanding who people listen to in each market and what they are actually worried about.
When uncertainty sets in, people protect their turf. Roles get guarded. Silos harden. Decisions slow as teams focus on keeping influence instead of building something new.
When communication misses this, the impact is rarely dramatic at first. It shows up slowly, through disengagement, resistance and delay.
Employees Decide Earlier Than You Think
For employees, M&A feels personal long before it feels strategic.
They want to know how decisions will be made, whether local expertise still matters, and what the deal means for their job and future. They don’t expect certainty, but they do expect straight answers.
Vague reassurances can create more anxiety than simply acknowledging what is not yet known.
Managers sit at the centre of this dynamic. They are more trusted than corporate communications but often lack the tools to explain what the deal means in practice. When they lack clarity, uncertainty spreads quickly and becomes entrenched.
Change is rarely the problem. Employees’ fear of losing their role, influence, identity, or stability drives disengagement.
External Attention Changes the Equation
Cross-border deals attract public and political scrutiny that domestic transactions often do not.
Foreign ownership, jobs, and national interest are not abstract concerns. They shape how regulators act and how quickly questions escalate. Media expectations differ widely. In some places, restraint signals seriousness. In others, it looks suspicious.
Internal uncertainty has a way of becoming visible externally. Customers and partners often sense it before leadership does.
Why This Matters for Deal Counsel
For lawyers advising on cross-border M&A, communication is not a branding exercise. It is part of deal execution.
Poorly sequenced communication can complicate regulatory engagement. Inconsistent messaging can undermine management credibility. Prolonged silence can make integration harder than it needs to be.
Handled well, communication supports the legal strategy rather than undercutting it. It helps ensure that what can be said, and what cannot, aligns with how people actually receive and interpret information in different markets. It reduces friction instead of creating it.
The most effective deal teams treat communication as core infrastructure. They build it in early, tailor it to each market, and know that trust comes from what’s said, what’s acknowledged, and who delivers the message.
A simple test applies: If the people affected by the deal can’t explain, in their own words, why it makes sense, the communication hasn’t worked.
Cross-border M&A rarely fails because advisers lack skill. It fails because the human side gets addressed too late.
For lawyers navigating these deals, spotting communication risk early can mean the difference between a deal that just closes, and one that truly succeeds.
For more than 35 years as a commercial lawyer, I have seen how many of us, myself included, confused effective advice with immediate and exhaustive answers. Now I feel that the worlds of law and business are changing: it is not enough to know (more and more laws, more requirements, more contradictory rulings… and more noise), but rather to listen, accompany and facilitate decisions. And that is where acting also as an executive coach offers an extraordinarily useful framework.
Lawyers are expected to solve problems. Executive coaches, however, help others (within an ethical framework) to discover the answer for themselves. And this can be a source of enormous professional and client satisfaction. When clients are faced with a problem, they do not need a legal analysis, but rather clarity and perspective to decide… based on ‘their problem’, not ‘our solution’. Integrating executive coaching tools into our professional practice transforms legal conversations and advice into something more effective: a decision-making process in which we accompany the client from start to finish.
I can think of three areas where the legal advisor and the executive coach meet:
- The relationship with the client. Listen carefully before advising.
Plutarch said that ‘listening well is the basis of living well’. And sometimes the client is not so much looking for an answer as for clarity in order to make a decision. Listening beyond what they say (and what they don’t say) allows us to understand what concerns them. A question can open up more avenues than a lecture, which will most likely leave them cold. When we listen without rushing and without bias, we create a space for reflection that helps clients to organise, prioritise and make meaningful decisions. Meaningful… for them.
- Negotiation and mediation.
In these processes, we use coaching techniques to help defuse resistance and move from confrontation to understanding. The lawyer-coach facilitates the parties listening to each other and discovering what lies behind their demands. A negotiation can be unblocked when the other party is allowed to express themselves. Agreements cease to be mere transactions and become shared decisions, which are more stable and sustainable over time and less likely to be sources of conflict.
- Accompanying processes of change in the client and their organisation
The lawyer-coach can become not only the drafter of the agreement but also the facilitator of change. They help those involved to understand what is at stake and align decisions with their values and objectives by managing resistance. The solicitor ceases to be a mere ‘provider’ of services (who is often only called upon at the end of the process) and becomes a partner in reflection.
In short, I perceive that today we are required to practise differently: less technical and more human, less reactive and more transformative. Coaching techniques help: conscious listening, constructive feedback, clarity of purpose… they allow us to better manage conflict, stress and uncertainty. Coaching, of course, does not replace the law, but rather broadens it and provides it with tools. Now, artificial intelligence (much faster and potentially much more comprehensive and exhaustive) is displacing us from our habits. Perhaps this allows us to glimpse that lawyers should not only be experts in rules, but also facilitators of difficult conversations, someone capable of combining analysis and empathy, precision and presence. Someone who understands that their value lies in helping their clients avoid conflicts or resolve them in the way that best suits them. And that is where the lawyer-coach has a lot to contribute.
How real estate tokenisation works, what is the regulatory framework, and what rights investors actually acquire?
Real estate tokenisation, already present in Spain for several years, is no longer a futuristic promise but a tangible reality in the Spanish market. It represents more than just a technological innovation: it signifies a profound transformation in how we understand ownership, investment, and liquidity within the real estate sector — one of the most traditional and tightly regulated areas of our economy.
What is real estate tokenisation and how does it work?
In essence, to tokenise a property today means converting the economic rights associated with that asset into digital units that can circulate on blockchain-based platforms. Each token represents a fraction of those economic rights, allowing investors with more modest capital to access a market that has traditionally required substantial investments.
The role of smart contracts
Tokens operate through smart contracts that automatically execute the distribution of rental income or resale proceeds of that partial representation of the property, including any potential difference in value, eliminating intermediaries and providing transparency to the process. This automation is not merely cosmetic: it reduces operational costs, speeds up transactions, and potentially increases the liquidity of assets that have historically been among the least liquid in the market.
The legal reality: what is actually tokenised in Spain
It is essential to clarify from the outset a key point often blurred by marketing discourse: in practice, real estate tokenisation projects in Spain do not tokenise the property itself but rather the economic rights linked to a corporate vehicle (usually a special purpose vehicle, or SPV) that owns the property. Spanish law only allows the tokenisation of shares in joint-stock companies (sociedades anónimas) using distributed ledger technology; shares in limited liability companies (sociedades limitadas) cannot be tokenised. This means that if the SPV is a limited liability company, its shares cannot be directly tokenised — only other instruments such as participative loans or credit rights over income streams can be represented as tokens. Only if the SPV is incorporated as a joint-stock company is it legally possible to tokenise its shares.
What rights does a real estate token investor actually acquire?
An investor who acquires a token does not become a direct co-owner of the property. Depending on the structure chosen, they may become a shareholder in a tokenised joint-stock company that owns the property or a holder of economic rights derived from participative loans or other indirect forms of economic participation issued by the SPV that owns the asset. The distinction is crucial: if the company faces solvency issues or bankruptcy, the value of the token collapses with it, and the investor cannot exercise any direct real rights over the property.
Spanish law, rooted in centuries of land registry tradition, does not currently allow the transfer of real property rights through the mere transfer of tokens; a public deed and registration are required for the transfer to be effective against third parties. The SPV structure is therefore a compromise between technological possibilities and the demands of the current legal framework.
Regulatory framework for real estate tokenisation in Spain
CNMV authorisation and the 2023 Securities Market Law
The Spanish regulator has begun to establish a legal foundation for this technology to develop within a secure framework. In 2023, the Spanish National Securities Market Commission (CNMV) authorised Adventurees Capital PFP as the first crowdfunding platform to issue tokenised securities — a milestone in the convergence of crowdfunding and blockchain. This authorisation was accompanied by the approval of Law 6/2023 on the Securities Market, which expressly recognises the representation of transferable securities through distributed ledger technologies such as blockchain, granting them full legal validity.
The role of the Land Registry in the blockchain era
In parallel, the Spanish Association of Land Registrars is exploring how to integrate blockchain technology into the registry system, although it is important to clarify the real scope of these initiatives. Current projects focus mainly on complementary applications such as digital management of the Building Book or improved traceability and accessibility of registry information. They do not aim to replace the fundamental pillars of the system: execution of public deeds before a notary and registration of ownership, which remain absolutely mandatory for the transfer of real rights over property. Registrars are firm in their institutional stance: blockchain can complement and streamline document management, but it cannot replace the legal control exercised by the registrar or the protection of third parties offered by the Land Registry — both essential components of the Spanish legal system. This position reflects the current limitation of the model: tokens circulate on the blockchain representing positions in SPVs or economic rights over them, but the actual ownership of the property remains anchored in the traditional registry system, held by the corporate vehicle, and any transfer of that ownership must still follow the conventional legal process with all its guarantees.
European regulation: ECSPR, MiCA and the DLT Pilot Regime
Spain also benefits from a European regulatory framework that is positioning the EU as a global leader in digital asset regulation. The European Crowdfunding Service Providers Regulation (ECSPR) harmonises the rules for crowdfunding platforms, allowing an authorised platform in one Member State to operate across the EU through the so-called “European passport”. The MiCA Regulation, which came fully into force on 30 December 2024, broadly regulates crypto-asset markets, setting obligations for both issuers and service providers. The DLT Pilot Regime (EU Regulation 2022/858) allows market infrastructures based on distributed ledger technology to operate under certain temporary exemptions, creating a controlled testing environment to assess the potential of these technologies in financial markets.
The Spanish regulator’s approach could be described as cautiously supportive: innovation is encouraged, but strict compliance with anti-money laundering, customer identification, and disclosure obligations is required to protect investors. This is not technological laissez-faire, but rather an effort to integrate innovation within a solid framework of legal guarantees.
Legal challenges and risks of real estate tokenisation
The risks of the SPV structure
The legal challenges that remain are significant and deserve attention. The SPV structure, while legally viable, introduces an additional layer of complexity and risk that must be clearly communicated to investors. Unlike direct ownership — where the investor holds real rights over the property enforceable against third parties — in the current tokenised model, investors hold positions in indirect forms of economic participation (shares, participative loans, credit rights) linked to the company that owns the property. This has important implications for corporate liability, taxation, and insolvency protection.
The disconnect between the on-chain and off-chain worlds
It is also essential to understand that the connection between the “on-chain” world (where tokens circulate) and the “off-chain” world (where property rights are recorded) is neither direct nor automatic. Transferring a token does not in itself alter the Land Registry: ownership of the property remains with the SPV regardless of who holds the tokens, and only a duly notarised and registered deed can change that ownership. The exploratory projects of the Land Registrars aim to improve efficiency in information management but do not alter this fundamental principle. As in any emerging market, it is essential to prevent fraudulent schemes that promise unrealistic returns or market tokens without proper legal backing.
Practical implications for investors and legal practitioners
For legal practitioners, real estate tokenisation may require adapting contracts, corporate bylaws, and financing structures to an environment where rights circulate digitally and in a decentralised manner. For investors, it offers an opportunity to diversify portfolios with smaller capital contributions and greater liquidity potential than traditional real estate investment, provided they understand that they are not acquiring direct ownership of the property but rather a financial position linked to the corporate structure that owns it. And for the wider economy, it could invigorate a real estate market worth trillions of euros by facilitating the entry of retail capital previously excluded from such investments.
The future of real estate tokenisation in Spain
This is an evolution that combines law, technology, and finance in an inseparable way. It is essential to understand that tokenisation is not a passing trend but a tool that, when properly used and regulated, can transform access to one of society’s most valuable assets — property. However, this transformation currently operates through intermediate corporate structures and indirect forms of economic participation, not through direct ownership as commercial language sometimes suggests. It certainly does not imply an immediate revolution of Spain’s land registration system, whose fundamental guarantees remain intact.
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.
Since the General Data Protection Regulation (GDPR) took effect in 2018, the European Union (EU) has granted adequacy status to only a limited number of jurisdictions — those whose data protection regimes are deemed to provide an “essentially equivalent” level of protection to that of the EU. The current list includes Andorra, Argentina, Canada (under PIPEDA), Faroe Islands, Guernsey, Isle of Man, Israel, Japan, Jersey, New Zealand, South Korea, Switzerland, Uruguay, the United Kingdom, and the United States (limited to companies certified under the Data Privacy Framework).
As of 5 September 2025, Brazil is on the verge of joining this exclusive group. The European Commission has issued a draft adequacy decision concluding that the Brazilian General Data Protection Law (Lei Geral de Proteção de Dados Pessoais – LGPD), in conjunction with Brazil’s broader legal and constitutional framework, offers protections that are essentially equivalent to those found in the GDPR. While Brazil’s rules offer somewhat more flexibility in specific areas of data processing, the foundational principles and safeguards are well-aligned with EU standards.
Once finalized, the adequacy decision will authorize the free flow of personal data from the EU to Brazil without the need for additional contractual clauses or technical safeguards. Such a development is not just regulatory — it also answers a core political argument made by LGPD advocates since its inception: that the absence of a comprehensive data protection framework was undermining Brazil’s international competitiveness by limiting data flows and discouraging investment. For businesses, the EU decision may finally mean the removal of a significant layer of compliance complexity — a development especially welcome by small and medium-sized enterprises engaged in cross-border trade or service provision. The draft is currently under review by the European Data Protection Board (EDPB) and the Member States of the EU.
The Commission’s assessment highlights several key aspects of Brazil’s data protection landscape. It begins by noting that the Brazilian Constitution expressly guarantees the right to privacy and the protection of personal data — a notable distinction among non-EU jurisdictions. These protections are further supported by Brazil’s ratification of the American Convention on Human Rights and its recognition of the jurisdiction of the Inter-American Court of Human Rights, reinforcing a commitment to fundamental rights and democratic oversight.
The LGPD mirrors the GDPR in many critical respects and defines its territorial scope clearly. It applies to: (i) data processing carried out within Brazilian territory, (ii) the offering of goods or services to individuals in Brazil, and (iii) data collected in Brazil, even if subsequently processed abroad. This aligns well with the extraterritorial provisions of the GDPR. The definitions of personal data, sensitive data, controller, and processor are materially similar, as are the key principles governing processing — including lawfulness, purpose limitation, data minimization, accuracy, transparency, and security. The law expressly excludes anonymized data from its scope and establishes specific exemptions for journalistic activities, public security, and scientific research.
Another strength is Brazil’s institutional framework. The National Data Protection Authority (ANPD) was recently transformed into an autonomous regulatory agency, enhancing its independence and technical capacity. The ANPD holds both regulatory and enforcement powers: it can issue binding regulations, impose administrative sanctions, and publish authoritative guidance. To date, it has issued key guidelines on topics such as consent, legitimate interest, the role of the Data Protection Officer (DPO), and security incident reporting. Internationally, the ANPD is an active participant in global data protection dialogue — it is a member of the Global Privacy Assembly and an official observer to the Council of Europe’s Convention 108.
The LGPD’s approach to international data transfers is also structurally aligned with the GDPR. It requires appropriate safeguards such as standard contractual clauses, allows for future adequacy decisions under a regime comparable to Article 45 of the GDPR, and includes detailed provisions for onward transfers and transit data — that is, data merely passing through Brazil without further processing. The rights of data subjects are robust and familiar to European practitioners: access, rectification, erasure, portability, and withdrawal of consent are guaranteed. Lawful bases for processing are also aligned — including consent, legal obligations, contract execution, and legitimate interest. Notably, the LGPD requires a documented balancing test when relying on legitimate interest, bringing additional accountability to this flexible legal basis.
Security incidents involving personal data must be notified to both the ANPD and affected data subjects when there is a significant risk of harm. The standard notification deadline is 72 hours, and the required content aligns closely with Articles 33 and 34 of the GDPR. The ANPD may also order public disclosure of incidents or require remedial measures, depending on the nature and scope of the breach.
Importantly, this process is not one-sided. In parallel to the European Commission’s adequacy decision, the ANPD is conducting its own adequacy assessment of the EU and EEA data protection frameworks. This process is regulated by the Brazilian Resolution CD/ANPD No. 19/2024, which governs international data transfers. Once the technical and legal evaluation is complete, the ANPD’s Board of Directors will issue a formal decision. This reciprocal move reflects Brazil’s commitment to mutual recognition and regulatory symmetry — a positive signal for companies on both sides of the Atlantic.
In conclusion: If confirmed, Brazil’s adequacy status will simplify international operations, reduce compliance costs, and expand opportunities for data-driven business and legal cooperation. For European lawyers advising SMEs with interests in Latin America, this development is a strategic signal: Brazil is emerging not just as a growing market, but as a legally compatible and data-safe jurisdiction for international partnerships.
Remember the USA – EU agreement on 15% tariffs? I wrote that with a negotiator like Trump the game is never over (article here) and—after the recent interlude featuring a threat of 100% tariffs on pharmaceuticals—the U.S. government has announced the imposition of an overall 107% duty on Italian pasta, which could take effect on January 1, 2026.
Where this new duty comes from
The antidumping investigation was launched by the U.S. Department of Commerce at the request of certain competing American companies and is based on a 1996 antidumping order that allows for periodic reviews of imports of Italian pasta. The Department of Commerce conducts these checks annually to assess whether Italian producers are selling pasta at prices lower than the U.S. domestic market, a practice known as “dumping.”
Companies involved in the investigation
The Department of Commerce selected two sample companies for in-depth analysis, defined as “mandatory respondents”: La Molisana and Pastificio Lucio Garofalo. According to the official document published by the U.S. administration, for the period from July 1, 2023 to June 30, 2024, both companies allegedly sold their products below market prices, resulting in the imposition of a duty of 91.74%.
U.S. authorities justified this percentage by claiming the two companies did not provide complete or compliant information as requested by the Department and were therefore insufficiently cooperative during the investigation. What is very important is that, in addition to the two companies directly examined, the additional 91.74% duty is also applied to numerous other Italian producers not individually reviewed. This methodology, while formally permitted under U.S. law as an exception, is being applied without any direct verification of the other companies.
Next steps in the procedure
Italy’s Ministry of Foreign Affairs moved immediately, formally intervening in the proceeding as an “interested party” through the Italian Embassy in Washington. The Foreign Ministry is working in close coordination with the companies concerned and, in concert with the European Commission, to persuade the U.S. Department to revise the provisional duties.
The two companies involved (La Molisana and Garofalo) can submit documentation to contest the dumping allegations. However, if dumping is confirmed, the Department of Commerce will instruct Customs to apply antidumping duties on goods sold and entered into U.S. commerce.
The preliminary nature of this determination means there is still room to change the decision before it becomes final.
Possible effective date
The new super-duty of 91.74%, which will be added to the existing 15% tariff for a total of 107%, is scheduled to take effect on January 1, 2026. This date therefore represents a crucial deadline for all ongoing diplomatic and legal actions.
If confirmed, the economic impact would be significant: in 2024, Italian pasta exports to the United States reached a value of €671 million according to Coldiretti, accounting for nearly 17% of the sector’s total exports. A 107% duty would risk seriously undermining competitiveness in one of the most important markets for Italian agri-food products.
What to do between now and January 1, 2026?
At this stage, the entry into force of the new duty depends on the outcome of the ongoing procedure: given what has happened in recent months, and the political use the U.S. administration has made of tariffs—well beyond their technical function—it is reasonable to be pessimistic.
So, what to do? In recent months we have seen companies react to the uncertainty over the fate of the tariffs in three ways:
- Some rushed to ship as many products as possible before the potential effective date of the duty;
- Some granted—upfront—discounts equivalent to the threatened duty, in case it came into force;
- Some suspended orders, pending definitive news on the impact of the duties.
These are all valid options, but other effective tools for managing the uncertainty caused by the flurry of announcements, negotiations, and threats from the U.S. administration should not be forgotten: the risk of new duties being introduced, or existing ones being increased, can be managed in the contract by agreeing with the U.S. importer how any tariff change will affect the product.
The parties can stipulate, for example, that the increase will be split equally; or that the importer will bear it beyond a certain threshold; or that if the duty exceeds a certain level, the contracts may be terminated. You can find a deeper dive in this article.
The only certainty is that trade relations with the U.S. will stay unpredictable for a long time, and it’s vital to carefully manage the risk factors involved in selling products there. Right now, the focus is on tariffs and prices, and I encourage you to take this chance to thoroughly review existing agreements and assess whether—and how—other important points are addressed that could entail significant liabilities: we discuss them, very practically, in this book.
A dedicated notary account in Brazil is a legal mechanism that brings greater security, transparency, and reliability to financial transactions. Regulated under Law 8.935/1994 and Provision No. 197/2025, this service allows notaries to receive, manage, and release funds only after contractual conditions have been fulfilled. By ensuring segregation of assets, traceability, and impartial oversight, dedicated notary accounts provide an effective escrow-like solution for real estate deals, mergers and acquisitions, import/export operations, high-value asset purchases, and complex commercial contracts. This tool not only reduces legal risks and potential disputes but also strengthens trust between parties by guaranteeing that payments are safeguarded until obligations are met.
The legal basis can be found in Law 8.935/1994, § 1 of art. 7-A, which allows notaries to receive, deposit, and manage amounts related to legal transactions, with transactions subject to objectively verifiable facts/conditions. Provision No. 197, dated June 13, 2025, regulates, at the national level, the service of notarial accounts linked to Notary Public Offices.
Practical applications: among others, in the following transactions:
- Real estate: guarantee that the down payment and settlement amounts will be secured in a specific account. This mitigates the risk of misappropriation of funds and ensures that the money will be released only after all contractual conditions have been met.
- M&A: the linked notarial account creates a standardized escrow mechanism for the payment of price/holdbacks/earn-outs and conditional obligations.
- Purchase and Sale of High-Value Movable Property: the linked account can be used to guarantee payment. The buyer deposits the amount and the seller knows that the money is safe, being released only after the transfer of ownership and delivery of the goods.
- Import and Export: the transaction amount can be deposited with the notary and released to the exporter only after confirmation of delivery of the goods in the destination country, for example.
- Guarantee of Obligations: In any contract that provides for the payment of a sum of money as a guarantee, the notary account can be used to provide greater security to the parties.
- Supply, EPC/turnkey, and construction contracts: performance retentions, milestone acceptance (commissioning, as-built, issuance of ART/CREA), and payment against formal acceptance.
- Contractual joint ventures and commercial partnerships: advances conditional on licenses, authorizations, or competitive approval, where applicable.
Reduction of Legal Risks: The use of linked accounts reduces the chances of litigation related to lack of clarity about the origin and destination of funds. Companies can clearly demonstrate that payments were made and held by an impartial and secure institution.
Operational structure: limited to banking entities affiliated with the CNB, which must ensure the segregation of assets, traceability through audit trails, and proof of all transactions. The authorization of the delegate requires prior accreditation and electronic registration of the essential details of the transaction and its conditions in the CNB system, with access restricted to the parties and the notary.
Specific Purpose: amounts received as payment, guarantee, or advance payment as a result of notarial acts must be deposited in a bank account linked to the specific act and may only be moved for the purpose for which they are intended.
Transparency and Traceability: With the linked notarial account, it is possible to clearly track the financial flow of each transaction, which increases transparency for all parties and for supervisory bodies.
Verification of conditions and release. Once the objective conditions have been met, the notary authorizes the transfer to the recipients and files the proof of verification. In the event of a dispute between the parties, the notary suspends any movement, draws up a notarial deed, and advises on a consensual or judicial solution, without deciding on the effectiveness/termination of the transaction; if the transaction is frustrated and no solution is found, the procedure is terminated and the amounts are returned to the depositor, in accordance with the agreed clauses.
Confidentiality and access. In transactions with a confidentiality clause, the notary public maintains confidentiality and does not issue certificates regarding the content of the transaction; documents are accessible only for correctional purposes or by court order.
Remuneration and costs. The notary’s remuneration for the notarial account service is paid by the financial institution under the terms of the agreement, and the transfer of additional costs to the user is prohibited, without prejudice to fees for any related notarial acts.
Given the significance of the influencer market (over €21 billion in 2023), which now encompasses all sectors, and with a view for transparency and consumer protection, France, with the law of June 9, 2023, proposed the world’s first regulation governing the activities of influencers, with the objective of defining and regulating influencer activities on social media platforms.
However, influencers are subject to multiple obligations stemming from various sources, necessitating the utmost vigilance, both in drafting influence agreements (between influencers and agencies or between influencers and advertisers) and in the behaviour they must adopt on social media or online platforms. This vigilance is particularly heightened as existing regulations do not cover the core of influencers’ activities, especially their status and remuneration, which remain subject to legal ambiguity, posing risks to advertisers as regulatory authorities’ scrutiny intensifies.
Key points to remember
- Influencers’ activity is subject to numerous regulations, including the law of June 9, 2023.
- This law not only regulates the drafting of influence contracts but also the influencer’s behaviour to ensure greater transparency for consumers.
- Every influencer whose audience includes French users is affected by the provisions of the law of June 9, 2023, even if they are not physically present in French territory.
- Both the law of June 9, 2023, and the “Digital Services Act,” as well as the proposed law on “fast fashion,” foresee increasing accountability for various actors in the commercial influence sector, particularly influencers and online platforms.
- Despite a plethora of regulations, the status and remuneration of influencers remain unaddressed issues that require special attention from advertisers engaging with influencers.
The law of June 9, 2023, regulating influencer activity
The definition of influencer professions
The law of June 9, 2023, provides two essential definitions for influencer activities:
- Influencers are defined as ‘natural or legal persons who, for consideration, mobilize their notoriety with their audience to communicate to the public, electronically, content aimed at promoting, directly or indirectly, goods, services, or any cause, engaging in commercial influence activities electronically.’
- The activity of an influencer agent is defined as ‘that which consists of representing, for consideration,’ the influencer or a possible agent ‘with the aim of promoting, for consideration, goods, services, or any cause‘ (article 7) The influencer agent must take ‘necessary measures to ensure the defense of the interests of the persons they represent, to avoid situations of conflict of interest, and to ensure the compliance of their activity‘ with the law of June 9, 2023.
The obligations imposed on commercial messages created by the influencer
The law sets forth obligations that influencers must adhere to regarding their publications:
- Mandatory particulars: When creating content, this law imposes an obligation on influencers to provide information to consumers, aiming for transparency towards their audience. Thus, influencers are required to clearly, legibly, and identifiably indicate on the influencer’s image or video, regardless of its format and throughout the entire viewing duration (according to modalities to be defined by decree):
– The mention “advertisement” or “commercial collaboration.” Violating this obligation constitutes deceptive commercial practice punishable by two years’ imprisonment and a fine of €300,000 (Article 5 of the law of June 9, 2023).
– The mention of “altered images” (modification by image processing methods aimed at refining or thickening the silhouette or modifying the appearance of the face) or “virtual images” (images created by artificial intelligence). Failure to do so may result in a one-year prison sentence and a fine of €4,500 (Article 5 of the law of June 9, 2023).
- Prohibited or regulated promotions: This law reminds certain prohibitions, subject to criminal and administrative sanctions, stemming from French law on the direct or indirect promotion of certain categories of products and services, under penalty of criminal or administrative sanctions. This includes the promotion of products and services related to:
– health: surgery, aesthetic medicine, therapeutic prescriptions, and nicotine products;
– non-domestic animals, unless it concerns an establishment authorized to hold them;
– financial: contracts, financial products, and services;
– sports-related: subscriptions to sports advice or predictions;
– crypto assets: if not from registered actors or have not received approval from the AMF;
– gambling: their promotion prohibited for those under 18 years old and regulated by law;
– professional training: their promotion is not prohibited but regulated.
The accountability of influencer behaviour
The law also holds influencers accountable from the contracting of their relationships and when they act as sellers:
- Regulation of commercial influence agreements: This law imposes, subject to nullity, from a certain threshold of influencer remuneration (defined by decree), the formalization in writing of the agreement between the advertiser and the influencer, but also, if applicable, between the influencer’s agent, and the mandatory stipulation of certain clauses (remuneration, mission description, etc.).
- Influencer responsibility as a cyber seller: Influencers engaging in drop shipping (selling products without handling their delivery, done by the supplier) must provide the buyer with all information in French as required by Article L. 221-5 of the Consumer Code about the product, such as its availability and legality (i.e., guarantee that the product is not counterfeit), applicable product warranty, and supplier identity. Additionally, influencers must ensure the proper delivery and receipt of products and, in case of default, compensate the buyer. Influencers are also logically subject to obligations regarding deceptive commercial practices (for more information, the DGCCRF website explain the dropshipping).
The accountability of other actors in the commercial influence ecosystem
Joint and several liability is set by law, for the advertiser, influencer, or influencer’s agent for damages caused to third parties in the execution of the commercial influence contract, allowing the victim of the damage to act against the most solvent party.
Furthermore, the law introduces accountability for online platforms by partially incorporating the European Regulation 2022/2065 on digital services (known as the “DSA“) of October 19, 2022.
French regulation and international influencers
Influencers established outside the European Union (including also Switzerland and the EEA) who promote products or services to a French audience must obtain professional liability insurance from an insurer established within the EU. They must also designate a legal or natural person providing “a form of representation” (SIC) within the EU. This representative (whose regime is not very clear) is remunerated to represent the influencer before administrative and judicial authorities and to ensure the compliance of the influencer’s activity with law of June 9, 2023.
Furthermore, according to law of June 9, 2023, when the contract binding the influencer (or their agency) aims to implement a commercial influence activity electronically “targeting in particular an audience established in French territory” (SIC), this contract should be exclusively subject to French law (including the Consumer Code, the Intellectual Property Code, and the law of June 9, 2023). According to this law, the absence of such a stipulation would be sanctioned by the nullity of the contract. Law of June 9, 2023, seems to be established as an overriding mandatory law capable of setting aside the choice of a foreign law.
However, the legitimacy (what about compliance with the definition of overriding mandatory rules established by Regulation Rome I?) and effectiveness (what if the contract specifies a foreign law and a foreign jurisdiction?) of such a legal provision can be questioned, notably due to its vague and general wording. In fact, it should be the activity deployed by the “foreign” influencer to their community in France that should be apprehended by French overriding mandatory rules, rather than the content of the agreement concluded with the advertiser (which itself could also be foreign, by the way).
The other regulations governing the activity of influencers
The European regulations
The DSA further holds influencers accountable because, in addition to the reporting mechanism imposed on platforms to report illicit content (thus identifying a failing influencer), platforms must ensure (and will therefore shift this responsibility to the influencer) the identification of commercial communications and specific transparency obligations towards consumers.
The «soft law»
As early as 2015, the Advertising Regulatory Authority (“ARPP”) issued recommendations on best practices for digital advertising. Similarly, in March 2023, the French Ministry of Economy published a “code of conduct” for influencers and content creators. In 2023, the European Commission launched a legal information platform for influencers. Although non-binding, these rules, in addition to existing regulations, serve as guidelines for both influencers and content creators, as well as for judicial and administrative authorities.
The special status of child influencers
The law of October 19, 2020, aimed at regulating the commercial exploitation of children’s images on online platforms, notably opens up the possibility for child influencers to be recognized as salaried workers. However, this law only targeted video-sharing platforms. Article 2 of the law of June 9, 2023, extended the provisions regarding child influencer labor introduced by the 2020 law to all online platforms. Finally, a recent law aimed at ensuring respect for the image rights of children was published on February 19, 2024, introducing a principle of joint and several responsibility of both parents in protecting the minor’s image rights.
The status and remuneration of influencers: uncertainty persists
Despite the diversity of regulations applicable to influencers, none address their status and remuneration.
The status of the influencer
In the absence of regulations governing the status of influencers, a legal ambiguity persists regarding whether the influencer should be considered an independent contractor, an employee (as is partly the case for models or artists), or even as a brand representative (i.e. commercial agent), depending on the missions contractually entrusted to the influencer.
The nature of the contract and the applicable social security regime stem from the missions assigned to the influencer:
- In the case of an employment contract, the influencer will fall under the general regime for employees and assimilated persons, based on Articles L. 311-2 or 311-3 of the French Social Security Code.
- In the case of a service contract, the influencer will fall under the regime for self-employed workers.
The existence of a relationship of subordination between the advertiser and the influencer typically determines the qualification of an employment contract. Subordination is generally characterized when the employer gives orders and directives, has the power to control and sanction, and the influencer follows these directives. However, some activities are subject to a presumption of an employment contract; this is the case (at least in part) for artist contracts under Article L. 7121-3 of the French Labor Code and model contracts under Article L. 7123-2 of the French Labor Code.
The remuneration of the influencer
The influencer can be remunerated in cash (fixed or proportional) and/or in kind (for example: receiving a product from the brand, invitations to private or public events, coverage of travel expenses, etc.). The influencer’s remuneration must be specified in the influencer agreement and is directly impacted by the influencer’s status, as certain obligations (minimum wage, payment of social security contributions, etc.) apply in the case of an employment contract.
Furthermore, the remuneration (for the influencer’s services) must be distinguished from that of the transfer of their copyrights or image rights, which are subject to separate remuneration in exchange for the IP rights transferred.
The influencers… in the spotlight
The law of June 9, 2023, grants the French authority (i.e. the Consumer Affairs, Competition and Fraud Prevention Agency, “DGCCRF”) new injunction powers (with reinforced penalties). This comes in addition to the recent creation of a “commercial influence squad“, within the DGCCRF, tasked with monitoring social networks, and responding to reports received through Signal Conso. The law provides for fines and the possibility of blocking content.
As early as August 2023, the DGCCRF issued warnings to several influencers to comply with the new regulations on commercial influence and imposed on them the obligation to publicly disclose their conviction for non-compliance with the new provisions regarding transparency to consumers on their own social networks, a heavy penalty for actors whose activity relies on their popularity (DGCCRF investigation on the commercial practices of influencers).
On February 14, 2024, the European Commission and the national consumer protection authorities of 22 EU member states, Norway, and Iceland published the results of an analysis conducted on 570 influencers (the so-called “clean-up operation” of 2023 on influencers): only one in five influencers consistently presented their commercial content as advertising.
In response to environmental, ethical, and quality concerns related to “fast fashion,” a draft law aiming to ban advertising for fast fashion brands, including advertising done by influencers (Proposal for a law aiming to reduce the environmental impact of the textile industry), was adopted by the National Assembly on first reading on March 14, 2024.
Lastly, the law of June 9, 2023, has been criticized by the European Commission, which considers that the law would contravene certain principles provided by EU law, notably the principle of “country of origin,” according to which the company providing a service in other EU countries is exclusively subject to the law of its country of establishment (principle initially provided for by the E-commerce Directive of June 8, 2000, and included in the DSA). Some of its provisions, particularly those concerning the application of French law to foreign influencers, could therefore be subject to forthcoming – and welcome – modifications.
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U.S. Tariffs at 107% on Italian Pasta? Another episode in the saga of exporting to the United States
2025年10月8日
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意大利
- 契约
- 分销协议
- 税务
Cross-border merger and acquisition (M&A) transactions are carefully structured. Lawyers negotiate risk allocation, manage regulatory exposure, and draft documents designed to withstand scrutiny across multiple jurisdictions. On paper, many of these transactions are sound.
And yet a surprising number of deals struggle to deliver their expected value.
When that happens, the problem isn’t in the paperwork. It’s in the people: Do they believe in the deal?
Belief starts with communication. If people don’t understand the deal, the documents won’t save it.
What Lawyers See vs. What Everyone Else Feels
For lawyers, a transaction is all about managing risk. Disclosure is deliberate. Regulatory exposure is controlled. Words matter, and for good reason.
For everyone else, it feels different.
Employees hear their company has been sold to a foreign buyer and start filling in the blanks. Customers wonder if priorities will change. Regulators look for patterns. Journalists hunt for a local angle.
These audiences are not reading the transaction documents. They are responding to fragments of information, hallway chatter, and media coverage.
The gap between legal precision and human interpretation is where many cross-border deals begin to drift.
Silence Is Not Neutral
Between announcement and closing, caution often turns into radio silence.
There are understandable reasons for this. Multiple disclosure regimes apply. Competition laws constrain what can be shared. Employment rules vary by jurisdiction. No one wants to say the wrong thing in the wrong place.
The problem? Silence rarely creates stability.
In the absence of credible information, people make up their own stories. These spread quickly inside the company and beyond. Once those narratives take hold, they’re hard to unwind, even when the official version finally comes out.
By the time integration teams are ready to engage, behaviour has already shifted. Trust has thinned. Momentum has slowed. Positions have hardened, and assumptions feel like facts.
One Deal, Many Interpretations
Cross-border transactions remove the safety net of shared assumptions.
What sounds confident in one country can come across as arrogant in another. An announcement that seems careful and responsible in one market may look evasive somewhere else. Expectations around consultation, transparency and leadership vary more than many deal teams expect.
That is why a single global message often falls flat.
The commercial logic needs to be consistent, but trust is built locally. That means understanding who people listen to in each market and what they are actually worried about.
When uncertainty sets in, people protect their turf. Roles get guarded. Silos harden. Decisions slow as teams focus on keeping influence instead of building something new.
When communication misses this, the impact is rarely dramatic at first. It shows up slowly, through disengagement, resistance and delay.
Employees Decide Earlier Than You Think
For employees, M&A feels personal long before it feels strategic.
They want to know how decisions will be made, whether local expertise still matters, and what the deal means for their job and future. They don’t expect certainty, but they do expect straight answers.
Vague reassurances can create more anxiety than simply acknowledging what is not yet known.
Managers sit at the centre of this dynamic. They are more trusted than corporate communications but often lack the tools to explain what the deal means in practice. When they lack clarity, uncertainty spreads quickly and becomes entrenched.
Change is rarely the problem. Employees’ fear of losing their role, influence, identity, or stability drives disengagement.
External Attention Changes the Equation
Cross-border deals attract public and political scrutiny that domestic transactions often do not.
Foreign ownership, jobs, and national interest are not abstract concerns. They shape how regulators act and how quickly questions escalate. Media expectations differ widely. In some places, restraint signals seriousness. In others, it looks suspicious.
Internal uncertainty has a way of becoming visible externally. Customers and partners often sense it before leadership does.
Why This Matters for Deal Counsel
For lawyers advising on cross-border M&A, communication is not a branding exercise. It is part of deal execution.
Poorly sequenced communication can complicate regulatory engagement. Inconsistent messaging can undermine management credibility. Prolonged silence can make integration harder than it needs to be.
Handled well, communication supports the legal strategy rather than undercutting it. It helps ensure that what can be said, and what cannot, aligns with how people actually receive and interpret information in different markets. It reduces friction instead of creating it.
The most effective deal teams treat communication as core infrastructure. They build it in early, tailor it to each market, and know that trust comes from what’s said, what’s acknowledged, and who delivers the message.
A simple test applies: If the people affected by the deal can’t explain, in their own words, why it makes sense, the communication hasn’t worked.
Cross-border M&A rarely fails because advisers lack skill. It fails because the human side gets addressed too late.
For lawyers navigating these deals, spotting communication risk early can mean the difference between a deal that just closes, and one that truly succeeds.
For more than 35 years as a commercial lawyer, I have seen how many of us, myself included, confused effective advice with immediate and exhaustive answers. Now I feel that the worlds of law and business are changing: it is not enough to know (more and more laws, more requirements, more contradictory rulings… and more noise), but rather to listen, accompany and facilitate decisions. And that is where acting also as an executive coach offers an extraordinarily useful framework.
Lawyers are expected to solve problems. Executive coaches, however, help others (within an ethical framework) to discover the answer for themselves. And this can be a source of enormous professional and client satisfaction. When clients are faced with a problem, they do not need a legal analysis, but rather clarity and perspective to decide… based on ‘their problem’, not ‘our solution’. Integrating executive coaching tools into our professional practice transforms legal conversations and advice into something more effective: a decision-making process in which we accompany the client from start to finish.
I can think of three areas where the legal advisor and the executive coach meet:
- The relationship with the client. Listen carefully before advising.
Plutarch said that ‘listening well is the basis of living well’. And sometimes the client is not so much looking for an answer as for clarity in order to make a decision. Listening beyond what they say (and what they don’t say) allows us to understand what concerns them. A question can open up more avenues than a lecture, which will most likely leave them cold. When we listen without rushing and without bias, we create a space for reflection that helps clients to organise, prioritise and make meaningful decisions. Meaningful… for them.
- Negotiation and mediation.
In these processes, we use coaching techniques to help defuse resistance and move from confrontation to understanding. The lawyer-coach facilitates the parties listening to each other and discovering what lies behind their demands. A negotiation can be unblocked when the other party is allowed to express themselves. Agreements cease to be mere transactions and become shared decisions, which are more stable and sustainable over time and less likely to be sources of conflict.
- Accompanying processes of change in the client and their organisation
The lawyer-coach can become not only the drafter of the agreement but also the facilitator of change. They help those involved to understand what is at stake and align decisions with their values and objectives by managing resistance. The solicitor ceases to be a mere ‘provider’ of services (who is often only called upon at the end of the process) and becomes a partner in reflection.
In short, I perceive that today we are required to practise differently: less technical and more human, less reactive and more transformative. Coaching techniques help: conscious listening, constructive feedback, clarity of purpose… they allow us to better manage conflict, stress and uncertainty. Coaching, of course, does not replace the law, but rather broadens it and provides it with tools. Now, artificial intelligence (much faster and potentially much more comprehensive and exhaustive) is displacing us from our habits. Perhaps this allows us to glimpse that lawyers should not only be experts in rules, but also facilitators of difficult conversations, someone capable of combining analysis and empathy, precision and presence. Someone who understands that their value lies in helping their clients avoid conflicts or resolve them in the way that best suits them. And that is where the lawyer-coach has a lot to contribute.
How real estate tokenisation works, what is the regulatory framework, and what rights investors actually acquire?
Real estate tokenisation, already present in Spain for several years, is no longer a futuristic promise but a tangible reality in the Spanish market. It represents more than just a technological innovation: it signifies a profound transformation in how we understand ownership, investment, and liquidity within the real estate sector — one of the most traditional and tightly regulated areas of our economy.
What is real estate tokenisation and how does it work?
In essence, to tokenise a property today means converting the economic rights associated with that asset into digital units that can circulate on blockchain-based platforms. Each token represents a fraction of those economic rights, allowing investors with more modest capital to access a market that has traditionally required substantial investments.
The role of smart contracts
Tokens operate through smart contracts that automatically execute the distribution of rental income or resale proceeds of that partial representation of the property, including any potential difference in value, eliminating intermediaries and providing transparency to the process. This automation is not merely cosmetic: it reduces operational costs, speeds up transactions, and potentially increases the liquidity of assets that have historically been among the least liquid in the market.
The legal reality: what is actually tokenised in Spain
It is essential to clarify from the outset a key point often blurred by marketing discourse: in practice, real estate tokenisation projects in Spain do not tokenise the property itself but rather the economic rights linked to a corporate vehicle (usually a special purpose vehicle, or SPV) that owns the property. Spanish law only allows the tokenisation of shares in joint-stock companies (sociedades anónimas) using distributed ledger technology; shares in limited liability companies (sociedades limitadas) cannot be tokenised. This means that if the SPV is a limited liability company, its shares cannot be directly tokenised — only other instruments such as participative loans or credit rights over income streams can be represented as tokens. Only if the SPV is incorporated as a joint-stock company is it legally possible to tokenise its shares.
What rights does a real estate token investor actually acquire?
An investor who acquires a token does not become a direct co-owner of the property. Depending on the structure chosen, they may become a shareholder in a tokenised joint-stock company that owns the property or a holder of economic rights derived from participative loans or other indirect forms of economic participation issued by the SPV that owns the asset. The distinction is crucial: if the company faces solvency issues or bankruptcy, the value of the token collapses with it, and the investor cannot exercise any direct real rights over the property.
Spanish law, rooted in centuries of land registry tradition, does not currently allow the transfer of real property rights through the mere transfer of tokens; a public deed and registration are required for the transfer to be effective against third parties. The SPV structure is therefore a compromise between technological possibilities and the demands of the current legal framework.
Regulatory framework for real estate tokenisation in Spain
CNMV authorisation and the 2023 Securities Market Law
The Spanish regulator has begun to establish a legal foundation for this technology to develop within a secure framework. In 2023, the Spanish National Securities Market Commission (CNMV) authorised Adventurees Capital PFP as the first crowdfunding platform to issue tokenised securities — a milestone in the convergence of crowdfunding and blockchain. This authorisation was accompanied by the approval of Law 6/2023 on the Securities Market, which expressly recognises the representation of transferable securities through distributed ledger technologies such as blockchain, granting them full legal validity.
The role of the Land Registry in the blockchain era
In parallel, the Spanish Association of Land Registrars is exploring how to integrate blockchain technology into the registry system, although it is important to clarify the real scope of these initiatives. Current projects focus mainly on complementary applications such as digital management of the Building Book or improved traceability and accessibility of registry information. They do not aim to replace the fundamental pillars of the system: execution of public deeds before a notary and registration of ownership, which remain absolutely mandatory for the transfer of real rights over property. Registrars are firm in their institutional stance: blockchain can complement and streamline document management, but it cannot replace the legal control exercised by the registrar or the protection of third parties offered by the Land Registry — both essential components of the Spanish legal system. This position reflects the current limitation of the model: tokens circulate on the blockchain representing positions in SPVs or economic rights over them, but the actual ownership of the property remains anchored in the traditional registry system, held by the corporate vehicle, and any transfer of that ownership must still follow the conventional legal process with all its guarantees.
European regulation: ECSPR, MiCA and the DLT Pilot Regime
Spain also benefits from a European regulatory framework that is positioning the EU as a global leader in digital asset regulation. The European Crowdfunding Service Providers Regulation (ECSPR) harmonises the rules for crowdfunding platforms, allowing an authorised platform in one Member State to operate across the EU through the so-called “European passport”. The MiCA Regulation, which came fully into force on 30 December 2024, broadly regulates crypto-asset markets, setting obligations for both issuers and service providers. The DLT Pilot Regime (EU Regulation 2022/858) allows market infrastructures based on distributed ledger technology to operate under certain temporary exemptions, creating a controlled testing environment to assess the potential of these technologies in financial markets.
The Spanish regulator’s approach could be described as cautiously supportive: innovation is encouraged, but strict compliance with anti-money laundering, customer identification, and disclosure obligations is required to protect investors. This is not technological laissez-faire, but rather an effort to integrate innovation within a solid framework of legal guarantees.
Legal challenges and risks of real estate tokenisation
The risks of the SPV structure
The legal challenges that remain are significant and deserve attention. The SPV structure, while legally viable, introduces an additional layer of complexity and risk that must be clearly communicated to investors. Unlike direct ownership — where the investor holds real rights over the property enforceable against third parties — in the current tokenised model, investors hold positions in indirect forms of economic participation (shares, participative loans, credit rights) linked to the company that owns the property. This has important implications for corporate liability, taxation, and insolvency protection.
The disconnect between the on-chain and off-chain worlds
It is also essential to understand that the connection between the “on-chain” world (where tokens circulate) and the “off-chain” world (where property rights are recorded) is neither direct nor automatic. Transferring a token does not in itself alter the Land Registry: ownership of the property remains with the SPV regardless of who holds the tokens, and only a duly notarised and registered deed can change that ownership. The exploratory projects of the Land Registrars aim to improve efficiency in information management but do not alter this fundamental principle. As in any emerging market, it is essential to prevent fraudulent schemes that promise unrealistic returns or market tokens without proper legal backing.
Practical implications for investors and legal practitioners
For legal practitioners, real estate tokenisation may require adapting contracts, corporate bylaws, and financing structures to an environment where rights circulate digitally and in a decentralised manner. For investors, it offers an opportunity to diversify portfolios with smaller capital contributions and greater liquidity potential than traditional real estate investment, provided they understand that they are not acquiring direct ownership of the property but rather a financial position linked to the corporate structure that owns it. And for the wider economy, it could invigorate a real estate market worth trillions of euros by facilitating the entry of retail capital previously excluded from such investments.
The future of real estate tokenisation in Spain
This is an evolution that combines law, technology, and finance in an inseparable way. It is essential to understand that tokenisation is not a passing trend but a tool that, when properly used and regulated, can transform access to one of society’s most valuable assets — property. However, this transformation currently operates through intermediate corporate structures and indirect forms of economic participation, not through direct ownership as commercial language sometimes suggests. It certainly does not imply an immediate revolution of Spain’s land registration system, whose fundamental guarantees remain intact.
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.
Since the General Data Protection Regulation (GDPR) took effect in 2018, the European Union (EU) has granted adequacy status to only a limited number of jurisdictions — those whose data protection regimes are deemed to provide an “essentially equivalent” level of protection to that of the EU. The current list includes Andorra, Argentina, Canada (under PIPEDA), Faroe Islands, Guernsey, Isle of Man, Israel, Japan, Jersey, New Zealand, South Korea, Switzerland, Uruguay, the United Kingdom, and the United States (limited to companies certified under the Data Privacy Framework).
As of 5 September 2025, Brazil is on the verge of joining this exclusive group. The European Commission has issued a draft adequacy decision concluding that the Brazilian General Data Protection Law (Lei Geral de Proteção de Dados Pessoais – LGPD), in conjunction with Brazil’s broader legal and constitutional framework, offers protections that are essentially equivalent to those found in the GDPR. While Brazil’s rules offer somewhat more flexibility in specific areas of data processing, the foundational principles and safeguards are well-aligned with EU standards.
Once finalized, the adequacy decision will authorize the free flow of personal data from the EU to Brazil without the need for additional contractual clauses or technical safeguards. Such a development is not just regulatory — it also answers a core political argument made by LGPD advocates since its inception: that the absence of a comprehensive data protection framework was undermining Brazil’s international competitiveness by limiting data flows and discouraging investment. For businesses, the EU decision may finally mean the removal of a significant layer of compliance complexity — a development especially welcome by small and medium-sized enterprises engaged in cross-border trade or service provision. The draft is currently under review by the European Data Protection Board (EDPB) and the Member States of the EU.
The Commission’s assessment highlights several key aspects of Brazil’s data protection landscape. It begins by noting that the Brazilian Constitution expressly guarantees the right to privacy and the protection of personal data — a notable distinction among non-EU jurisdictions. These protections are further supported by Brazil’s ratification of the American Convention on Human Rights and its recognition of the jurisdiction of the Inter-American Court of Human Rights, reinforcing a commitment to fundamental rights and democratic oversight.
The LGPD mirrors the GDPR in many critical respects and defines its territorial scope clearly. It applies to: (i) data processing carried out within Brazilian territory, (ii) the offering of goods or services to individuals in Brazil, and (iii) data collected in Brazil, even if subsequently processed abroad. This aligns well with the extraterritorial provisions of the GDPR. The definitions of personal data, sensitive data, controller, and processor are materially similar, as are the key principles governing processing — including lawfulness, purpose limitation, data minimization, accuracy, transparency, and security. The law expressly excludes anonymized data from its scope and establishes specific exemptions for journalistic activities, public security, and scientific research.
Another strength is Brazil’s institutional framework. The National Data Protection Authority (ANPD) was recently transformed into an autonomous regulatory agency, enhancing its independence and technical capacity. The ANPD holds both regulatory and enforcement powers: it can issue binding regulations, impose administrative sanctions, and publish authoritative guidance. To date, it has issued key guidelines on topics such as consent, legitimate interest, the role of the Data Protection Officer (DPO), and security incident reporting. Internationally, the ANPD is an active participant in global data protection dialogue — it is a member of the Global Privacy Assembly and an official observer to the Council of Europe’s Convention 108.
The LGPD’s approach to international data transfers is also structurally aligned with the GDPR. It requires appropriate safeguards such as standard contractual clauses, allows for future adequacy decisions under a regime comparable to Article 45 of the GDPR, and includes detailed provisions for onward transfers and transit data — that is, data merely passing through Brazil without further processing. The rights of data subjects are robust and familiar to European practitioners: access, rectification, erasure, portability, and withdrawal of consent are guaranteed. Lawful bases for processing are also aligned — including consent, legal obligations, contract execution, and legitimate interest. Notably, the LGPD requires a documented balancing test when relying on legitimate interest, bringing additional accountability to this flexible legal basis.
Security incidents involving personal data must be notified to both the ANPD and affected data subjects when there is a significant risk of harm. The standard notification deadline is 72 hours, and the required content aligns closely with Articles 33 and 34 of the GDPR. The ANPD may also order public disclosure of incidents or require remedial measures, depending on the nature and scope of the breach.
Importantly, this process is not one-sided. In parallel to the European Commission’s adequacy decision, the ANPD is conducting its own adequacy assessment of the EU and EEA data protection frameworks. This process is regulated by the Brazilian Resolution CD/ANPD No. 19/2024, which governs international data transfers. Once the technical and legal evaluation is complete, the ANPD’s Board of Directors will issue a formal decision. This reciprocal move reflects Brazil’s commitment to mutual recognition and regulatory symmetry — a positive signal for companies on both sides of the Atlantic.
In conclusion: If confirmed, Brazil’s adequacy status will simplify international operations, reduce compliance costs, and expand opportunities for data-driven business and legal cooperation. For European lawyers advising SMEs with interests in Latin America, this development is a strategic signal: Brazil is emerging not just as a growing market, but as a legally compatible and data-safe jurisdiction for international partnerships.
Remember the USA – EU agreement on 15% tariffs? I wrote that with a negotiator like Trump the game is never over (article here) and—after the recent interlude featuring a threat of 100% tariffs on pharmaceuticals—the U.S. government has announced the imposition of an overall 107% duty on Italian pasta, which could take effect on January 1, 2026.
Where this new duty comes from
The antidumping investigation was launched by the U.S. Department of Commerce at the request of certain competing American companies and is based on a 1996 antidumping order that allows for periodic reviews of imports of Italian pasta. The Department of Commerce conducts these checks annually to assess whether Italian producers are selling pasta at prices lower than the U.S. domestic market, a practice known as “dumping.”
Companies involved in the investigation
The Department of Commerce selected two sample companies for in-depth analysis, defined as “mandatory respondents”: La Molisana and Pastificio Lucio Garofalo. According to the official document published by the U.S. administration, for the period from July 1, 2023 to June 30, 2024, both companies allegedly sold their products below market prices, resulting in the imposition of a duty of 91.74%.
U.S. authorities justified this percentage by claiming the two companies did not provide complete or compliant information as requested by the Department and were therefore insufficiently cooperative during the investigation. What is very important is that, in addition to the two companies directly examined, the additional 91.74% duty is also applied to numerous other Italian producers not individually reviewed. This methodology, while formally permitted under U.S. law as an exception, is being applied without any direct verification of the other companies.
Next steps in the procedure
Italy’s Ministry of Foreign Affairs moved immediately, formally intervening in the proceeding as an “interested party” through the Italian Embassy in Washington. The Foreign Ministry is working in close coordination with the companies concerned and, in concert with the European Commission, to persuade the U.S. Department to revise the provisional duties.
The two companies involved (La Molisana and Garofalo) can submit documentation to contest the dumping allegations. However, if dumping is confirmed, the Department of Commerce will instruct Customs to apply antidumping duties on goods sold and entered into U.S. commerce.
The preliminary nature of this determination means there is still room to change the decision before it becomes final.
Possible effective date
The new super-duty of 91.74%, which will be added to the existing 15% tariff for a total of 107%, is scheduled to take effect on January 1, 2026. This date therefore represents a crucial deadline for all ongoing diplomatic and legal actions.
If confirmed, the economic impact would be significant: in 2024, Italian pasta exports to the United States reached a value of €671 million according to Coldiretti, accounting for nearly 17% of the sector’s total exports. A 107% duty would risk seriously undermining competitiveness in one of the most important markets for Italian agri-food products.
What to do between now and January 1, 2026?
At this stage, the entry into force of the new duty depends on the outcome of the ongoing procedure: given what has happened in recent months, and the political use the U.S. administration has made of tariffs—well beyond their technical function—it is reasonable to be pessimistic.
So, what to do? In recent months we have seen companies react to the uncertainty over the fate of the tariffs in three ways:
- Some rushed to ship as many products as possible before the potential effective date of the duty;
- Some granted—upfront—discounts equivalent to the threatened duty, in case it came into force;
- Some suspended orders, pending definitive news on the impact of the duties.
These are all valid options, but other effective tools for managing the uncertainty caused by the flurry of announcements, negotiations, and threats from the U.S. administration should not be forgotten: the risk of new duties being introduced, or existing ones being increased, can be managed in the contract by agreeing with the U.S. importer how any tariff change will affect the product.
The parties can stipulate, for example, that the increase will be split equally; or that the importer will bear it beyond a certain threshold; or that if the duty exceeds a certain level, the contracts may be terminated. You can find a deeper dive in this article.
The only certainty is that trade relations with the U.S. will stay unpredictable for a long time, and it’s vital to carefully manage the risk factors involved in selling products there. Right now, the focus is on tariffs and prices, and I encourage you to take this chance to thoroughly review existing agreements and assess whether—and how—other important points are addressed that could entail significant liabilities: we discuss them, very practically, in this book.
A dedicated notary account in Brazil is a legal mechanism that brings greater security, transparency, and reliability to financial transactions. Regulated under Law 8.935/1994 and Provision No. 197/2025, this service allows notaries to receive, manage, and release funds only after contractual conditions have been fulfilled. By ensuring segregation of assets, traceability, and impartial oversight, dedicated notary accounts provide an effective escrow-like solution for real estate deals, mergers and acquisitions, import/export operations, high-value asset purchases, and complex commercial contracts. This tool not only reduces legal risks and potential disputes but also strengthens trust between parties by guaranteeing that payments are safeguarded until obligations are met.
The legal basis can be found in Law 8.935/1994, § 1 of art. 7-A, which allows notaries to receive, deposit, and manage amounts related to legal transactions, with transactions subject to objectively verifiable facts/conditions. Provision No. 197, dated June 13, 2025, regulates, at the national level, the service of notarial accounts linked to Notary Public Offices.
Practical applications: among others, in the following transactions:
- Real estate: guarantee that the down payment and settlement amounts will be secured in a specific account. This mitigates the risk of misappropriation of funds and ensures that the money will be released only after all contractual conditions have been met.
- M&A: the linked notarial account creates a standardized escrow mechanism for the payment of price/holdbacks/earn-outs and conditional obligations.
- Purchase and Sale of High-Value Movable Property: the linked account can be used to guarantee payment. The buyer deposits the amount and the seller knows that the money is safe, being released only after the transfer of ownership and delivery of the goods.
- Import and Export: the transaction amount can be deposited with the notary and released to the exporter only after confirmation of delivery of the goods in the destination country, for example.
- Guarantee of Obligations: In any contract that provides for the payment of a sum of money as a guarantee, the notary account can be used to provide greater security to the parties.
- Supply, EPC/turnkey, and construction contracts: performance retentions, milestone acceptance (commissioning, as-built, issuance of ART/CREA), and payment against formal acceptance.
- Contractual joint ventures and commercial partnerships: advances conditional on licenses, authorizations, or competitive approval, where applicable.
Reduction of Legal Risks: The use of linked accounts reduces the chances of litigation related to lack of clarity about the origin and destination of funds. Companies can clearly demonstrate that payments were made and held by an impartial and secure institution.
Operational structure: limited to banking entities affiliated with the CNB, which must ensure the segregation of assets, traceability through audit trails, and proof of all transactions. The authorization of the delegate requires prior accreditation and electronic registration of the essential details of the transaction and its conditions in the CNB system, with access restricted to the parties and the notary.
Specific Purpose: amounts received as payment, guarantee, or advance payment as a result of notarial acts must be deposited in a bank account linked to the specific act and may only be moved for the purpose for which they are intended.
Transparency and Traceability: With the linked notarial account, it is possible to clearly track the financial flow of each transaction, which increases transparency for all parties and for supervisory bodies.
Verification of conditions and release. Once the objective conditions have been met, the notary authorizes the transfer to the recipients and files the proof of verification. In the event of a dispute between the parties, the notary suspends any movement, draws up a notarial deed, and advises on a consensual or judicial solution, without deciding on the effectiveness/termination of the transaction; if the transaction is frustrated and no solution is found, the procedure is terminated and the amounts are returned to the depositor, in accordance with the agreed clauses.
Confidentiality and access. In transactions with a confidentiality clause, the notary public maintains confidentiality and does not issue certificates regarding the content of the transaction; documents are accessible only for correctional purposes or by court order.
Remuneration and costs. The notary’s remuneration for the notarial account service is paid by the financial institution under the terms of the agreement, and the transfer of additional costs to the user is prohibited, without prejudice to fees for any related notarial acts.
Given the significance of the influencer market (over €21 billion in 2023), which now encompasses all sectors, and with a view for transparency and consumer protection, France, with the law of June 9, 2023, proposed the world’s first regulation governing the activities of influencers, with the objective of defining and regulating influencer activities on social media platforms.
However, influencers are subject to multiple obligations stemming from various sources, necessitating the utmost vigilance, both in drafting influence agreements (between influencers and agencies or between influencers and advertisers) and in the behaviour they must adopt on social media or online platforms. This vigilance is particularly heightened as existing regulations do not cover the core of influencers’ activities, especially their status and remuneration, which remain subject to legal ambiguity, posing risks to advertisers as regulatory authorities’ scrutiny intensifies.
Key points to remember
- Influencers’ activity is subject to numerous regulations, including the law of June 9, 2023.
- This law not only regulates the drafting of influence contracts but also the influencer’s behaviour to ensure greater transparency for consumers.
- Every influencer whose audience includes French users is affected by the provisions of the law of June 9, 2023, even if they are not physically present in French territory.
- Both the law of June 9, 2023, and the “Digital Services Act,” as well as the proposed law on “fast fashion,” foresee increasing accountability for various actors in the commercial influence sector, particularly influencers and online platforms.
- Despite a plethora of regulations, the status and remuneration of influencers remain unaddressed issues that require special attention from advertisers engaging with influencers.
The law of June 9, 2023, regulating influencer activity
The definition of influencer professions
The law of June 9, 2023, provides two essential definitions for influencer activities:
- Influencers are defined as ‘natural or legal persons who, for consideration, mobilize their notoriety with their audience to communicate to the public, electronically, content aimed at promoting, directly or indirectly, goods, services, or any cause, engaging in commercial influence activities electronically.’
- The activity of an influencer agent is defined as ‘that which consists of representing, for consideration,’ the influencer or a possible agent ‘with the aim of promoting, for consideration, goods, services, or any cause‘ (article 7) The influencer agent must take ‘necessary measures to ensure the defense of the interests of the persons they represent, to avoid situations of conflict of interest, and to ensure the compliance of their activity‘ with the law of June 9, 2023.
The obligations imposed on commercial messages created by the influencer
The law sets forth obligations that influencers must adhere to regarding their publications:
- Mandatory particulars: When creating content, this law imposes an obligation on influencers to provide information to consumers, aiming for transparency towards their audience. Thus, influencers are required to clearly, legibly, and identifiably indicate on the influencer’s image or video, regardless of its format and throughout the entire viewing duration (according to modalities to be defined by decree):
– The mention “advertisement” or “commercial collaboration.” Violating this obligation constitutes deceptive commercial practice punishable by two years’ imprisonment and a fine of €300,000 (Article 5 of the law of June 9, 2023).
– The mention of “altered images” (modification by image processing methods aimed at refining or thickening the silhouette or modifying the appearance of the face) or “virtual images” (images created by artificial intelligence). Failure to do so may result in a one-year prison sentence and a fine of €4,500 (Article 5 of the law of June 9, 2023).
- Prohibited or regulated promotions: This law reminds certain prohibitions, subject to criminal and administrative sanctions, stemming from French law on the direct or indirect promotion of certain categories of products and services, under penalty of criminal or administrative sanctions. This includes the promotion of products and services related to:
– health: surgery, aesthetic medicine, therapeutic prescriptions, and nicotine products;
– non-domestic animals, unless it concerns an establishment authorized to hold them;
– financial: contracts, financial products, and services;
– sports-related: subscriptions to sports advice or predictions;
– crypto assets: if not from registered actors or have not received approval from the AMF;
– gambling: their promotion prohibited for those under 18 years old and regulated by law;
– professional training: their promotion is not prohibited but regulated.
The accountability of influencer behaviour
The law also holds influencers accountable from the contracting of their relationships and when they act as sellers:
- Regulation of commercial influence agreements: This law imposes, subject to nullity, from a certain threshold of influencer remuneration (defined by decree), the formalization in writing of the agreement between the advertiser and the influencer, but also, if applicable, between the influencer’s agent, and the mandatory stipulation of certain clauses (remuneration, mission description, etc.).
- Influencer responsibility as a cyber seller: Influencers engaging in drop shipping (selling products without handling their delivery, done by the supplier) must provide the buyer with all information in French as required by Article L. 221-5 of the Consumer Code about the product, such as its availability and legality (i.e., guarantee that the product is not counterfeit), applicable product warranty, and supplier identity. Additionally, influencers must ensure the proper delivery and receipt of products and, in case of default, compensate the buyer. Influencers are also logically subject to obligations regarding deceptive commercial practices (for more information, the DGCCRF website explain the dropshipping).
The accountability of other actors in the commercial influence ecosystem
Joint and several liability is set by law, for the advertiser, influencer, or influencer’s agent for damages caused to third parties in the execution of the commercial influence contract, allowing the victim of the damage to act against the most solvent party.
Furthermore, the law introduces accountability for online platforms by partially incorporating the European Regulation 2022/2065 on digital services (known as the “DSA“) of October 19, 2022.
French regulation and international influencers
Influencers established outside the European Union (including also Switzerland and the EEA) who promote products or services to a French audience must obtain professional liability insurance from an insurer established within the EU. They must also designate a legal or natural person providing “a form of representation” (SIC) within the EU. This representative (whose regime is not very clear) is remunerated to represent the influencer before administrative and judicial authorities and to ensure the compliance of the influencer’s activity with law of June 9, 2023.
Furthermore, according to law of June 9, 2023, when the contract binding the influencer (or their agency) aims to implement a commercial influence activity electronically “targeting in particular an audience established in French territory” (SIC), this contract should be exclusively subject to French law (including the Consumer Code, the Intellectual Property Code, and the law of June 9, 2023). According to this law, the absence of such a stipulation would be sanctioned by the nullity of the contract. Law of June 9, 2023, seems to be established as an overriding mandatory law capable of setting aside the choice of a foreign law.
However, the legitimacy (what about compliance with the definition of overriding mandatory rules established by Regulation Rome I?) and effectiveness (what if the contract specifies a foreign law and a foreign jurisdiction?) of such a legal provision can be questioned, notably due to its vague and general wording. In fact, it should be the activity deployed by the “foreign” influencer to their community in France that should be apprehended by French overriding mandatory rules, rather than the content of the agreement concluded with the advertiser (which itself could also be foreign, by the way).
The other regulations governing the activity of influencers
The European regulations
The DSA further holds influencers accountable because, in addition to the reporting mechanism imposed on platforms to report illicit content (thus identifying a failing influencer), platforms must ensure (and will therefore shift this responsibility to the influencer) the identification of commercial communications and specific transparency obligations towards consumers.
The «soft law»
As early as 2015, the Advertising Regulatory Authority (“ARPP”) issued recommendations on best practices for digital advertising. Similarly, in March 2023, the French Ministry of Economy published a “code of conduct” for influencers and content creators. In 2023, the European Commission launched a legal information platform for influencers. Although non-binding, these rules, in addition to existing regulations, serve as guidelines for both influencers and content creators, as well as for judicial and administrative authorities.
The special status of child influencers
The law of October 19, 2020, aimed at regulating the commercial exploitation of children’s images on online platforms, notably opens up the possibility for child influencers to be recognized as salaried workers. However, this law only targeted video-sharing platforms. Article 2 of the law of June 9, 2023, extended the provisions regarding child influencer labor introduced by the 2020 law to all online platforms. Finally, a recent law aimed at ensuring respect for the image rights of children was published on February 19, 2024, introducing a principle of joint and several responsibility of both parents in protecting the minor’s image rights.
The status and remuneration of influencers: uncertainty persists
Despite the diversity of regulations applicable to influencers, none address their status and remuneration.
The status of the influencer
In the absence of regulations governing the status of influencers, a legal ambiguity persists regarding whether the influencer should be considered an independent contractor, an employee (as is partly the case for models or artists), or even as a brand representative (i.e. commercial agent), depending on the missions contractually entrusted to the influencer.
The nature of the contract and the applicable social security regime stem from the missions assigned to the influencer:
- In the case of an employment contract, the influencer will fall under the general regime for employees and assimilated persons, based on Articles L. 311-2 or 311-3 of the French Social Security Code.
- In the case of a service contract, the influencer will fall under the regime for self-employed workers.
The existence of a relationship of subordination between the advertiser and the influencer typically determines the qualification of an employment contract. Subordination is generally characterized when the employer gives orders and directives, has the power to control and sanction, and the influencer follows these directives. However, some activities are subject to a presumption of an employment contract; this is the case (at least in part) for artist contracts under Article L. 7121-3 of the French Labor Code and model contracts under Article L. 7123-2 of the French Labor Code.
The remuneration of the influencer
The influencer can be remunerated in cash (fixed or proportional) and/or in kind (for example: receiving a product from the brand, invitations to private or public events, coverage of travel expenses, etc.). The influencer’s remuneration must be specified in the influencer agreement and is directly impacted by the influencer’s status, as certain obligations (minimum wage, payment of social security contributions, etc.) apply in the case of an employment contract.
Furthermore, the remuneration (for the influencer’s services) must be distinguished from that of the transfer of their copyrights or image rights, which are subject to separate remuneration in exchange for the IP rights transferred.
The influencers… in the spotlight
The law of June 9, 2023, grants the French authority (i.e. the Consumer Affairs, Competition and Fraud Prevention Agency, “DGCCRF”) new injunction powers (with reinforced penalties). This comes in addition to the recent creation of a “commercial influence squad“, within the DGCCRF, tasked with monitoring social networks, and responding to reports received through Signal Conso. The law provides for fines and the possibility of blocking content.
As early as August 2023, the DGCCRF issued warnings to several influencers to comply with the new regulations on commercial influence and imposed on them the obligation to publicly disclose their conviction for non-compliance with the new provisions regarding transparency to consumers on their own social networks, a heavy penalty for actors whose activity relies on their popularity (DGCCRF investigation on the commercial practices of influencers).
On February 14, 2024, the European Commission and the national consumer protection authorities of 22 EU member states, Norway, and Iceland published the results of an analysis conducted on 570 influencers (the so-called “clean-up operation” of 2023 on influencers): only one in five influencers consistently presented their commercial content as advertising.
In response to environmental, ethical, and quality concerns related to “fast fashion,” a draft law aiming to ban advertising for fast fashion brands, including advertising done by influencers (Proposal for a law aiming to reduce the environmental impact of the textile industry), was adopted by the National Assembly on first reading on March 14, 2024.
Lastly, the law of June 9, 2023, has been criticized by the European Commission, which considers that the law would contravene certain principles provided by EU law, notably the principle of “country of origin,” according to which the company providing a service in other EU countries is exclusively subject to the law of its country of establishment (principle initially provided for by the E-commerce Directive of June 8, 2000, and included in the DSA). Some of its provisions, particularly those concerning the application of French law to foreign influencers, could therefore be subject to forthcoming – and welcome – modifications.
写信给 Roberto
Brazil – Dedicated Notary Account
2025年8月28日
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巴西
- 契约
- 外国投资
- 并购
Cross-border merger and acquisition (M&A) transactions are carefully structured. Lawyers negotiate risk allocation, manage regulatory exposure, and draft documents designed to withstand scrutiny across multiple jurisdictions. On paper, many of these transactions are sound.
And yet a surprising number of deals struggle to deliver their expected value.
When that happens, the problem isn’t in the paperwork. It’s in the people: Do they believe in the deal?
Belief starts with communication. If people don’t understand the deal, the documents won’t save it.
What Lawyers See vs. What Everyone Else Feels
For lawyers, a transaction is all about managing risk. Disclosure is deliberate. Regulatory exposure is controlled. Words matter, and for good reason.
For everyone else, it feels different.
Employees hear their company has been sold to a foreign buyer and start filling in the blanks. Customers wonder if priorities will change. Regulators look for patterns. Journalists hunt for a local angle.
These audiences are not reading the transaction documents. They are responding to fragments of information, hallway chatter, and media coverage.
The gap between legal precision and human interpretation is where many cross-border deals begin to drift.
Silence Is Not Neutral
Between announcement and closing, caution often turns into radio silence.
There are understandable reasons for this. Multiple disclosure regimes apply. Competition laws constrain what can be shared. Employment rules vary by jurisdiction. No one wants to say the wrong thing in the wrong place.
The problem? Silence rarely creates stability.
In the absence of credible information, people make up their own stories. These spread quickly inside the company and beyond. Once those narratives take hold, they’re hard to unwind, even when the official version finally comes out.
By the time integration teams are ready to engage, behaviour has already shifted. Trust has thinned. Momentum has slowed. Positions have hardened, and assumptions feel like facts.
One Deal, Many Interpretations
Cross-border transactions remove the safety net of shared assumptions.
What sounds confident in one country can come across as arrogant in another. An announcement that seems careful and responsible in one market may look evasive somewhere else. Expectations around consultation, transparency and leadership vary more than many deal teams expect.
That is why a single global message often falls flat.
The commercial logic needs to be consistent, but trust is built locally. That means understanding who people listen to in each market and what they are actually worried about.
When uncertainty sets in, people protect their turf. Roles get guarded. Silos harden. Decisions slow as teams focus on keeping influence instead of building something new.
When communication misses this, the impact is rarely dramatic at first. It shows up slowly, through disengagement, resistance and delay.
Employees Decide Earlier Than You Think
For employees, M&A feels personal long before it feels strategic.
They want to know how decisions will be made, whether local expertise still matters, and what the deal means for their job and future. They don’t expect certainty, but they do expect straight answers.
Vague reassurances can create more anxiety than simply acknowledging what is not yet known.
Managers sit at the centre of this dynamic. They are more trusted than corporate communications but often lack the tools to explain what the deal means in practice. When they lack clarity, uncertainty spreads quickly and becomes entrenched.
Change is rarely the problem. Employees’ fear of losing their role, influence, identity, or stability drives disengagement.
External Attention Changes the Equation
Cross-border deals attract public and political scrutiny that domestic transactions often do not.
Foreign ownership, jobs, and national interest are not abstract concerns. They shape how regulators act and how quickly questions escalate. Media expectations differ widely. In some places, restraint signals seriousness. In others, it looks suspicious.
Internal uncertainty has a way of becoming visible externally. Customers and partners often sense it before leadership does.
Why This Matters for Deal Counsel
For lawyers advising on cross-border M&A, communication is not a branding exercise. It is part of deal execution.
Poorly sequenced communication can complicate regulatory engagement. Inconsistent messaging can undermine management credibility. Prolonged silence can make integration harder than it needs to be.
Handled well, communication supports the legal strategy rather than undercutting it. It helps ensure that what can be said, and what cannot, aligns with how people actually receive and interpret information in different markets. It reduces friction instead of creating it.
The most effective deal teams treat communication as core infrastructure. They build it in early, tailor it to each market, and know that trust comes from what’s said, what’s acknowledged, and who delivers the message.
A simple test applies: If the people affected by the deal can’t explain, in their own words, why it makes sense, the communication hasn’t worked.
Cross-border M&A rarely fails because advisers lack skill. It fails because the human side gets addressed too late.
For lawyers navigating these deals, spotting communication risk early can mean the difference between a deal that just closes, and one that truly succeeds.
For more than 35 years as a commercial lawyer, I have seen how many of us, myself included, confused effective advice with immediate and exhaustive answers. Now I feel that the worlds of law and business are changing: it is not enough to know (more and more laws, more requirements, more contradictory rulings… and more noise), but rather to listen, accompany and facilitate decisions. And that is where acting also as an executive coach offers an extraordinarily useful framework.
Lawyers are expected to solve problems. Executive coaches, however, help others (within an ethical framework) to discover the answer for themselves. And this can be a source of enormous professional and client satisfaction. When clients are faced with a problem, they do not need a legal analysis, but rather clarity and perspective to decide… based on ‘their problem’, not ‘our solution’. Integrating executive coaching tools into our professional practice transforms legal conversations and advice into something more effective: a decision-making process in which we accompany the client from start to finish.
I can think of three areas where the legal advisor and the executive coach meet:
- The relationship with the client. Listen carefully before advising.
Plutarch said that ‘listening well is the basis of living well’. And sometimes the client is not so much looking for an answer as for clarity in order to make a decision. Listening beyond what they say (and what they don’t say) allows us to understand what concerns them. A question can open up more avenues than a lecture, which will most likely leave them cold. When we listen without rushing and without bias, we create a space for reflection that helps clients to organise, prioritise and make meaningful decisions. Meaningful… for them.
- Negotiation and mediation.
In these processes, we use coaching techniques to help defuse resistance and move from confrontation to understanding. The lawyer-coach facilitates the parties listening to each other and discovering what lies behind their demands. A negotiation can be unblocked when the other party is allowed to express themselves. Agreements cease to be mere transactions and become shared decisions, which are more stable and sustainable over time and less likely to be sources of conflict.
- Accompanying processes of change in the client and their organisation
The lawyer-coach can become not only the drafter of the agreement but also the facilitator of change. They help those involved to understand what is at stake and align decisions with their values and objectives by managing resistance. The solicitor ceases to be a mere ‘provider’ of services (who is often only called upon at the end of the process) and becomes a partner in reflection.
In short, I perceive that today we are required to practise differently: less technical and more human, less reactive and more transformative. Coaching techniques help: conscious listening, constructive feedback, clarity of purpose… they allow us to better manage conflict, stress and uncertainty. Coaching, of course, does not replace the law, but rather broadens it and provides it with tools. Now, artificial intelligence (much faster and potentially much more comprehensive and exhaustive) is displacing us from our habits. Perhaps this allows us to glimpse that lawyers should not only be experts in rules, but also facilitators of difficult conversations, someone capable of combining analysis and empathy, precision and presence. Someone who understands that their value lies in helping their clients avoid conflicts or resolve them in the way that best suits them. And that is where the lawyer-coach has a lot to contribute.
How real estate tokenisation works, what is the regulatory framework, and what rights investors actually acquire?
Real estate tokenisation, already present in Spain for several years, is no longer a futuristic promise but a tangible reality in the Spanish market. It represents more than just a technological innovation: it signifies a profound transformation in how we understand ownership, investment, and liquidity within the real estate sector — one of the most traditional and tightly regulated areas of our economy.
What is real estate tokenisation and how does it work?
In essence, to tokenise a property today means converting the economic rights associated with that asset into digital units that can circulate on blockchain-based platforms. Each token represents a fraction of those economic rights, allowing investors with more modest capital to access a market that has traditionally required substantial investments.
The role of smart contracts
Tokens operate through smart contracts that automatically execute the distribution of rental income or resale proceeds of that partial representation of the property, including any potential difference in value, eliminating intermediaries and providing transparency to the process. This automation is not merely cosmetic: it reduces operational costs, speeds up transactions, and potentially increases the liquidity of assets that have historically been among the least liquid in the market.
The legal reality: what is actually tokenised in Spain
It is essential to clarify from the outset a key point often blurred by marketing discourse: in practice, real estate tokenisation projects in Spain do not tokenise the property itself but rather the economic rights linked to a corporate vehicle (usually a special purpose vehicle, or SPV) that owns the property. Spanish law only allows the tokenisation of shares in joint-stock companies (sociedades anónimas) using distributed ledger technology; shares in limited liability companies (sociedades limitadas) cannot be tokenised. This means that if the SPV is a limited liability company, its shares cannot be directly tokenised — only other instruments such as participative loans or credit rights over income streams can be represented as tokens. Only if the SPV is incorporated as a joint-stock company is it legally possible to tokenise its shares.
What rights does a real estate token investor actually acquire?
An investor who acquires a token does not become a direct co-owner of the property. Depending on the structure chosen, they may become a shareholder in a tokenised joint-stock company that owns the property or a holder of economic rights derived from participative loans or other indirect forms of economic participation issued by the SPV that owns the asset. The distinction is crucial: if the company faces solvency issues or bankruptcy, the value of the token collapses with it, and the investor cannot exercise any direct real rights over the property.
Spanish law, rooted in centuries of land registry tradition, does not currently allow the transfer of real property rights through the mere transfer of tokens; a public deed and registration are required for the transfer to be effective against third parties. The SPV structure is therefore a compromise between technological possibilities and the demands of the current legal framework.
Regulatory framework for real estate tokenisation in Spain
CNMV authorisation and the 2023 Securities Market Law
The Spanish regulator has begun to establish a legal foundation for this technology to develop within a secure framework. In 2023, the Spanish National Securities Market Commission (CNMV) authorised Adventurees Capital PFP as the first crowdfunding platform to issue tokenised securities — a milestone in the convergence of crowdfunding and blockchain. This authorisation was accompanied by the approval of Law 6/2023 on the Securities Market, which expressly recognises the representation of transferable securities through distributed ledger technologies such as blockchain, granting them full legal validity.
The role of the Land Registry in the blockchain era
In parallel, the Spanish Association of Land Registrars is exploring how to integrate blockchain technology into the registry system, although it is important to clarify the real scope of these initiatives. Current projects focus mainly on complementary applications such as digital management of the Building Book or improved traceability and accessibility of registry information. They do not aim to replace the fundamental pillars of the system: execution of public deeds before a notary and registration of ownership, which remain absolutely mandatory for the transfer of real rights over property. Registrars are firm in their institutional stance: blockchain can complement and streamline document management, but it cannot replace the legal control exercised by the registrar or the protection of third parties offered by the Land Registry — both essential components of the Spanish legal system. This position reflects the current limitation of the model: tokens circulate on the blockchain representing positions in SPVs or economic rights over them, but the actual ownership of the property remains anchored in the traditional registry system, held by the corporate vehicle, and any transfer of that ownership must still follow the conventional legal process with all its guarantees.
European regulation: ECSPR, MiCA and the DLT Pilot Regime
Spain also benefits from a European regulatory framework that is positioning the EU as a global leader in digital asset regulation. The European Crowdfunding Service Providers Regulation (ECSPR) harmonises the rules for crowdfunding platforms, allowing an authorised platform in one Member State to operate across the EU through the so-called “European passport”. The MiCA Regulation, which came fully into force on 30 December 2024, broadly regulates crypto-asset markets, setting obligations for both issuers and service providers. The DLT Pilot Regime (EU Regulation 2022/858) allows market infrastructures based on distributed ledger technology to operate under certain temporary exemptions, creating a controlled testing environment to assess the potential of these technologies in financial markets.
The Spanish regulator’s approach could be described as cautiously supportive: innovation is encouraged, but strict compliance with anti-money laundering, customer identification, and disclosure obligations is required to protect investors. This is not technological laissez-faire, but rather an effort to integrate innovation within a solid framework of legal guarantees.
Legal challenges and risks of real estate tokenisation
The risks of the SPV structure
The legal challenges that remain are significant and deserve attention. The SPV structure, while legally viable, introduces an additional layer of complexity and risk that must be clearly communicated to investors. Unlike direct ownership — where the investor holds real rights over the property enforceable against third parties — in the current tokenised model, investors hold positions in indirect forms of economic participation (shares, participative loans, credit rights) linked to the company that owns the property. This has important implications for corporate liability, taxation, and insolvency protection.
The disconnect between the on-chain and off-chain worlds
It is also essential to understand that the connection between the “on-chain” world (where tokens circulate) and the “off-chain” world (where property rights are recorded) is neither direct nor automatic. Transferring a token does not in itself alter the Land Registry: ownership of the property remains with the SPV regardless of who holds the tokens, and only a duly notarised and registered deed can change that ownership. The exploratory projects of the Land Registrars aim to improve efficiency in information management but do not alter this fundamental principle. As in any emerging market, it is essential to prevent fraudulent schemes that promise unrealistic returns or market tokens without proper legal backing.
Practical implications for investors and legal practitioners
For legal practitioners, real estate tokenisation may require adapting contracts, corporate bylaws, and financing structures to an environment where rights circulate digitally and in a decentralised manner. For investors, it offers an opportunity to diversify portfolios with smaller capital contributions and greater liquidity potential than traditional real estate investment, provided they understand that they are not acquiring direct ownership of the property but rather a financial position linked to the corporate structure that owns it. And for the wider economy, it could invigorate a real estate market worth trillions of euros by facilitating the entry of retail capital previously excluded from such investments.
The future of real estate tokenisation in Spain
This is an evolution that combines law, technology, and finance in an inseparable way. It is essential to understand that tokenisation is not a passing trend but a tool that, when properly used and regulated, can transform access to one of society’s most valuable assets — property. However, this transformation currently operates through intermediate corporate structures and indirect forms of economic participation, not through direct ownership as commercial language sometimes suggests. It certainly does not imply an immediate revolution of Spain’s land registration system, whose fundamental guarantees remain intact.
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.
Since the General Data Protection Regulation (GDPR) took effect in 2018, the European Union (EU) has granted adequacy status to only a limited number of jurisdictions — those whose data protection regimes are deemed to provide an “essentially equivalent” level of protection to that of the EU. The current list includes Andorra, Argentina, Canada (under PIPEDA), Faroe Islands, Guernsey, Isle of Man, Israel, Japan, Jersey, New Zealand, South Korea, Switzerland, Uruguay, the United Kingdom, and the United States (limited to companies certified under the Data Privacy Framework).
As of 5 September 2025, Brazil is on the verge of joining this exclusive group. The European Commission has issued a draft adequacy decision concluding that the Brazilian General Data Protection Law (Lei Geral de Proteção de Dados Pessoais – LGPD), in conjunction with Brazil’s broader legal and constitutional framework, offers protections that are essentially equivalent to those found in the GDPR. While Brazil’s rules offer somewhat more flexibility in specific areas of data processing, the foundational principles and safeguards are well-aligned with EU standards.
Once finalized, the adequacy decision will authorize the free flow of personal data from the EU to Brazil without the need for additional contractual clauses or technical safeguards. Such a development is not just regulatory — it also answers a core political argument made by LGPD advocates since its inception: that the absence of a comprehensive data protection framework was undermining Brazil’s international competitiveness by limiting data flows and discouraging investment. For businesses, the EU decision may finally mean the removal of a significant layer of compliance complexity — a development especially welcome by small and medium-sized enterprises engaged in cross-border trade or service provision. The draft is currently under review by the European Data Protection Board (EDPB) and the Member States of the EU.
The Commission’s assessment highlights several key aspects of Brazil’s data protection landscape. It begins by noting that the Brazilian Constitution expressly guarantees the right to privacy and the protection of personal data — a notable distinction among non-EU jurisdictions. These protections are further supported by Brazil’s ratification of the American Convention on Human Rights and its recognition of the jurisdiction of the Inter-American Court of Human Rights, reinforcing a commitment to fundamental rights and democratic oversight.
The LGPD mirrors the GDPR in many critical respects and defines its territorial scope clearly. It applies to: (i) data processing carried out within Brazilian territory, (ii) the offering of goods or services to individuals in Brazil, and (iii) data collected in Brazil, even if subsequently processed abroad. This aligns well with the extraterritorial provisions of the GDPR. The definitions of personal data, sensitive data, controller, and processor are materially similar, as are the key principles governing processing — including lawfulness, purpose limitation, data minimization, accuracy, transparency, and security. The law expressly excludes anonymized data from its scope and establishes specific exemptions for journalistic activities, public security, and scientific research.
Another strength is Brazil’s institutional framework. The National Data Protection Authority (ANPD) was recently transformed into an autonomous regulatory agency, enhancing its independence and technical capacity. The ANPD holds both regulatory and enforcement powers: it can issue binding regulations, impose administrative sanctions, and publish authoritative guidance. To date, it has issued key guidelines on topics such as consent, legitimate interest, the role of the Data Protection Officer (DPO), and security incident reporting. Internationally, the ANPD is an active participant in global data protection dialogue — it is a member of the Global Privacy Assembly and an official observer to the Council of Europe’s Convention 108.
The LGPD’s approach to international data transfers is also structurally aligned with the GDPR. It requires appropriate safeguards such as standard contractual clauses, allows for future adequacy decisions under a regime comparable to Article 45 of the GDPR, and includes detailed provisions for onward transfers and transit data — that is, data merely passing through Brazil without further processing. The rights of data subjects are robust and familiar to European practitioners: access, rectification, erasure, portability, and withdrawal of consent are guaranteed. Lawful bases for processing are also aligned — including consent, legal obligations, contract execution, and legitimate interest. Notably, the LGPD requires a documented balancing test when relying on legitimate interest, bringing additional accountability to this flexible legal basis.
Security incidents involving personal data must be notified to both the ANPD and affected data subjects when there is a significant risk of harm. The standard notification deadline is 72 hours, and the required content aligns closely with Articles 33 and 34 of the GDPR. The ANPD may also order public disclosure of incidents or require remedial measures, depending on the nature and scope of the breach.
Importantly, this process is not one-sided. In parallel to the European Commission’s adequacy decision, the ANPD is conducting its own adequacy assessment of the EU and EEA data protection frameworks. This process is regulated by the Brazilian Resolution CD/ANPD No. 19/2024, which governs international data transfers. Once the technical and legal evaluation is complete, the ANPD’s Board of Directors will issue a formal decision. This reciprocal move reflects Brazil’s commitment to mutual recognition and regulatory symmetry — a positive signal for companies on both sides of the Atlantic.
In conclusion: If confirmed, Brazil’s adequacy status will simplify international operations, reduce compliance costs, and expand opportunities for data-driven business and legal cooperation. For European lawyers advising SMEs with interests in Latin America, this development is a strategic signal: Brazil is emerging not just as a growing market, but as a legally compatible and data-safe jurisdiction for international partnerships.
Remember the USA – EU agreement on 15% tariffs? I wrote that with a negotiator like Trump the game is never over (article here) and—after the recent interlude featuring a threat of 100% tariffs on pharmaceuticals—the U.S. government has announced the imposition of an overall 107% duty on Italian pasta, which could take effect on January 1, 2026.
Where this new duty comes from
The antidumping investigation was launched by the U.S. Department of Commerce at the request of certain competing American companies and is based on a 1996 antidumping order that allows for periodic reviews of imports of Italian pasta. The Department of Commerce conducts these checks annually to assess whether Italian producers are selling pasta at prices lower than the U.S. domestic market, a practice known as “dumping.”
Companies involved in the investigation
The Department of Commerce selected two sample companies for in-depth analysis, defined as “mandatory respondents”: La Molisana and Pastificio Lucio Garofalo. According to the official document published by the U.S. administration, for the period from July 1, 2023 to June 30, 2024, both companies allegedly sold their products below market prices, resulting in the imposition of a duty of 91.74%.
U.S. authorities justified this percentage by claiming the two companies did not provide complete or compliant information as requested by the Department and were therefore insufficiently cooperative during the investigation. What is very important is that, in addition to the two companies directly examined, the additional 91.74% duty is also applied to numerous other Italian producers not individually reviewed. This methodology, while formally permitted under U.S. law as an exception, is being applied without any direct verification of the other companies.
Next steps in the procedure
Italy’s Ministry of Foreign Affairs moved immediately, formally intervening in the proceeding as an “interested party” through the Italian Embassy in Washington. The Foreign Ministry is working in close coordination with the companies concerned and, in concert with the European Commission, to persuade the U.S. Department to revise the provisional duties.
The two companies involved (La Molisana and Garofalo) can submit documentation to contest the dumping allegations. However, if dumping is confirmed, the Department of Commerce will instruct Customs to apply antidumping duties on goods sold and entered into U.S. commerce.
The preliminary nature of this determination means there is still room to change the decision before it becomes final.
Possible effective date
The new super-duty of 91.74%, which will be added to the existing 15% tariff for a total of 107%, is scheduled to take effect on January 1, 2026. This date therefore represents a crucial deadline for all ongoing diplomatic and legal actions.
If confirmed, the economic impact would be significant: in 2024, Italian pasta exports to the United States reached a value of €671 million according to Coldiretti, accounting for nearly 17% of the sector’s total exports. A 107% duty would risk seriously undermining competitiveness in one of the most important markets for Italian agri-food products.
What to do between now and January 1, 2026?
At this stage, the entry into force of the new duty depends on the outcome of the ongoing procedure: given what has happened in recent months, and the political use the U.S. administration has made of tariffs—well beyond their technical function—it is reasonable to be pessimistic.
So, what to do? In recent months we have seen companies react to the uncertainty over the fate of the tariffs in three ways:
- Some rushed to ship as many products as possible before the potential effective date of the duty;
- Some granted—upfront—discounts equivalent to the threatened duty, in case it came into force;
- Some suspended orders, pending definitive news on the impact of the duties.
These are all valid options, but other effective tools for managing the uncertainty caused by the flurry of announcements, negotiations, and threats from the U.S. administration should not be forgotten: the risk of new duties being introduced, or existing ones being increased, can be managed in the contract by agreeing with the U.S. importer how any tariff change will affect the product.
The parties can stipulate, for example, that the increase will be split equally; or that the importer will bear it beyond a certain threshold; or that if the duty exceeds a certain level, the contracts may be terminated. You can find a deeper dive in this article.
The only certainty is that trade relations with the U.S. will stay unpredictable for a long time, and it’s vital to carefully manage the risk factors involved in selling products there. Right now, the focus is on tariffs and prices, and I encourage you to take this chance to thoroughly review existing agreements and assess whether—and how—other important points are addressed that could entail significant liabilities: we discuss them, very practically, in this book.
A dedicated notary account in Brazil is a legal mechanism that brings greater security, transparency, and reliability to financial transactions. Regulated under Law 8.935/1994 and Provision No. 197/2025, this service allows notaries to receive, manage, and release funds only after contractual conditions have been fulfilled. By ensuring segregation of assets, traceability, and impartial oversight, dedicated notary accounts provide an effective escrow-like solution for real estate deals, mergers and acquisitions, import/export operations, high-value asset purchases, and complex commercial contracts. This tool not only reduces legal risks and potential disputes but also strengthens trust between parties by guaranteeing that payments are safeguarded until obligations are met.
The legal basis can be found in Law 8.935/1994, § 1 of art. 7-A, which allows notaries to receive, deposit, and manage amounts related to legal transactions, with transactions subject to objectively verifiable facts/conditions. Provision No. 197, dated June 13, 2025, regulates, at the national level, the service of notarial accounts linked to Notary Public Offices.
Practical applications: among others, in the following transactions:
- Real estate: guarantee that the down payment and settlement amounts will be secured in a specific account. This mitigates the risk of misappropriation of funds and ensures that the money will be released only after all contractual conditions have been met.
- M&A: the linked notarial account creates a standardized escrow mechanism for the payment of price/holdbacks/earn-outs and conditional obligations.
- Purchase and Sale of High-Value Movable Property: the linked account can be used to guarantee payment. The buyer deposits the amount and the seller knows that the money is safe, being released only after the transfer of ownership and delivery of the goods.
- Import and Export: the transaction amount can be deposited with the notary and released to the exporter only after confirmation of delivery of the goods in the destination country, for example.
- Guarantee of Obligations: In any contract that provides for the payment of a sum of money as a guarantee, the notary account can be used to provide greater security to the parties.
- Supply, EPC/turnkey, and construction contracts: performance retentions, milestone acceptance (commissioning, as-built, issuance of ART/CREA), and payment against formal acceptance.
- Contractual joint ventures and commercial partnerships: advances conditional on licenses, authorizations, or competitive approval, where applicable.
Reduction of Legal Risks: The use of linked accounts reduces the chances of litigation related to lack of clarity about the origin and destination of funds. Companies can clearly demonstrate that payments were made and held by an impartial and secure institution.
Operational structure: limited to banking entities affiliated with the CNB, which must ensure the segregation of assets, traceability through audit trails, and proof of all transactions. The authorization of the delegate requires prior accreditation and electronic registration of the essential details of the transaction and its conditions in the CNB system, with access restricted to the parties and the notary.
Specific Purpose: amounts received as payment, guarantee, or advance payment as a result of notarial acts must be deposited in a bank account linked to the specific act and may only be moved for the purpose for which they are intended.
Transparency and Traceability: With the linked notarial account, it is possible to clearly track the financial flow of each transaction, which increases transparency for all parties and for supervisory bodies.
Verification of conditions and release. Once the objective conditions have been met, the notary authorizes the transfer to the recipients and files the proof of verification. In the event of a dispute between the parties, the notary suspends any movement, draws up a notarial deed, and advises on a consensual or judicial solution, without deciding on the effectiveness/termination of the transaction; if the transaction is frustrated and no solution is found, the procedure is terminated and the amounts are returned to the depositor, in accordance with the agreed clauses.
Confidentiality and access. In transactions with a confidentiality clause, the notary public maintains confidentiality and does not issue certificates regarding the content of the transaction; documents are accessible only for correctional purposes or by court order.
Remuneration and costs. The notary’s remuneration for the notarial account service is paid by the financial institution under the terms of the agreement, and the transfer of additional costs to the user is prohibited, without prejudice to fees for any related notarial acts.
Given the significance of the influencer market (over €21 billion in 2023), which now encompasses all sectors, and with a view for transparency and consumer protection, France, with the law of June 9, 2023, proposed the world’s first regulation governing the activities of influencers, with the objective of defining and regulating influencer activities on social media platforms.
However, influencers are subject to multiple obligations stemming from various sources, necessitating the utmost vigilance, both in drafting influence agreements (between influencers and agencies or between influencers and advertisers) and in the behaviour they must adopt on social media or online platforms. This vigilance is particularly heightened as existing regulations do not cover the core of influencers’ activities, especially their status and remuneration, which remain subject to legal ambiguity, posing risks to advertisers as regulatory authorities’ scrutiny intensifies.
Key points to remember
- Influencers’ activity is subject to numerous regulations, including the law of June 9, 2023.
- This law not only regulates the drafting of influence contracts but also the influencer’s behaviour to ensure greater transparency for consumers.
- Every influencer whose audience includes French users is affected by the provisions of the law of June 9, 2023, even if they are not physically present in French territory.
- Both the law of June 9, 2023, and the “Digital Services Act,” as well as the proposed law on “fast fashion,” foresee increasing accountability for various actors in the commercial influence sector, particularly influencers and online platforms.
- Despite a plethora of regulations, the status and remuneration of influencers remain unaddressed issues that require special attention from advertisers engaging with influencers.
The law of June 9, 2023, regulating influencer activity
The definition of influencer professions
The law of June 9, 2023, provides two essential definitions for influencer activities:
- Influencers are defined as ‘natural or legal persons who, for consideration, mobilize their notoriety with their audience to communicate to the public, electronically, content aimed at promoting, directly or indirectly, goods, services, or any cause, engaging in commercial influence activities electronically.’
- The activity of an influencer agent is defined as ‘that which consists of representing, for consideration,’ the influencer or a possible agent ‘with the aim of promoting, for consideration, goods, services, or any cause‘ (article 7) The influencer agent must take ‘necessary measures to ensure the defense of the interests of the persons they represent, to avoid situations of conflict of interest, and to ensure the compliance of their activity‘ with the law of June 9, 2023.
The obligations imposed on commercial messages created by the influencer
The law sets forth obligations that influencers must adhere to regarding their publications:
- Mandatory particulars: When creating content, this law imposes an obligation on influencers to provide information to consumers, aiming for transparency towards their audience. Thus, influencers are required to clearly, legibly, and identifiably indicate on the influencer’s image or video, regardless of its format and throughout the entire viewing duration (according to modalities to be defined by decree):
– The mention “advertisement” or “commercial collaboration.” Violating this obligation constitutes deceptive commercial practice punishable by two years’ imprisonment and a fine of €300,000 (Article 5 of the law of June 9, 2023).
– The mention of “altered images” (modification by image processing methods aimed at refining or thickening the silhouette or modifying the appearance of the face) or “virtual images” (images created by artificial intelligence). Failure to do so may result in a one-year prison sentence and a fine of €4,500 (Article 5 of the law of June 9, 2023).
- Prohibited or regulated promotions: This law reminds certain prohibitions, subject to criminal and administrative sanctions, stemming from French law on the direct or indirect promotion of certain categories of products and services, under penalty of criminal or administrative sanctions. This includes the promotion of products and services related to:
– health: surgery, aesthetic medicine, therapeutic prescriptions, and nicotine products;
– non-domestic animals, unless it concerns an establishment authorized to hold them;
– financial: contracts, financial products, and services;
– sports-related: subscriptions to sports advice or predictions;
– crypto assets: if not from registered actors or have not received approval from the AMF;
– gambling: their promotion prohibited for those under 18 years old and regulated by law;
– professional training: their promotion is not prohibited but regulated.
The accountability of influencer behaviour
The law also holds influencers accountable from the contracting of their relationships and when they act as sellers:
- Regulation of commercial influence agreements: This law imposes, subject to nullity, from a certain threshold of influencer remuneration (defined by decree), the formalization in writing of the agreement between the advertiser and the influencer, but also, if applicable, between the influencer’s agent, and the mandatory stipulation of certain clauses (remuneration, mission description, etc.).
- Influencer responsibility as a cyber seller: Influencers engaging in drop shipping (selling products without handling their delivery, done by the supplier) must provide the buyer with all information in French as required by Article L. 221-5 of the Consumer Code about the product, such as its availability and legality (i.e., guarantee that the product is not counterfeit), applicable product warranty, and supplier identity. Additionally, influencers must ensure the proper delivery and receipt of products and, in case of default, compensate the buyer. Influencers are also logically subject to obligations regarding deceptive commercial practices (for more information, the DGCCRF website explain the dropshipping).
The accountability of other actors in the commercial influence ecosystem
Joint and several liability is set by law, for the advertiser, influencer, or influencer’s agent for damages caused to third parties in the execution of the commercial influence contract, allowing the victim of the damage to act against the most solvent party.
Furthermore, the law introduces accountability for online platforms by partially incorporating the European Regulation 2022/2065 on digital services (known as the “DSA“) of October 19, 2022.
French regulation and international influencers
Influencers established outside the European Union (including also Switzerland and the EEA) who promote products or services to a French audience must obtain professional liability insurance from an insurer established within the EU. They must also designate a legal or natural person providing “a form of representation” (SIC) within the EU. This representative (whose regime is not very clear) is remunerated to represent the influencer before administrative and judicial authorities and to ensure the compliance of the influencer’s activity with law of June 9, 2023.
Furthermore, according to law of June 9, 2023, when the contract binding the influencer (or their agency) aims to implement a commercial influence activity electronically “targeting in particular an audience established in French territory” (SIC), this contract should be exclusively subject to French law (including the Consumer Code, the Intellectual Property Code, and the law of June 9, 2023). According to this law, the absence of such a stipulation would be sanctioned by the nullity of the contract. Law of June 9, 2023, seems to be established as an overriding mandatory law capable of setting aside the choice of a foreign law.
However, the legitimacy (what about compliance with the definition of overriding mandatory rules established by Regulation Rome I?) and effectiveness (what if the contract specifies a foreign law and a foreign jurisdiction?) of such a legal provision can be questioned, notably due to its vague and general wording. In fact, it should be the activity deployed by the “foreign” influencer to their community in France that should be apprehended by French overriding mandatory rules, rather than the content of the agreement concluded with the advertiser (which itself could also be foreign, by the way).
The other regulations governing the activity of influencers
The European regulations
The DSA further holds influencers accountable because, in addition to the reporting mechanism imposed on platforms to report illicit content (thus identifying a failing influencer), platforms must ensure (and will therefore shift this responsibility to the influencer) the identification of commercial communications and specific transparency obligations towards consumers.
The «soft law»
As early as 2015, the Advertising Regulatory Authority (“ARPP”) issued recommendations on best practices for digital advertising. Similarly, in March 2023, the French Ministry of Economy published a “code of conduct” for influencers and content creators. In 2023, the European Commission launched a legal information platform for influencers. Although non-binding, these rules, in addition to existing regulations, serve as guidelines for both influencers and content creators, as well as for judicial and administrative authorities.
The special status of child influencers
The law of October 19, 2020, aimed at regulating the commercial exploitation of children’s images on online platforms, notably opens up the possibility for child influencers to be recognized as salaried workers. However, this law only targeted video-sharing platforms. Article 2 of the law of June 9, 2023, extended the provisions regarding child influencer labor introduced by the 2020 law to all online platforms. Finally, a recent law aimed at ensuring respect for the image rights of children was published on February 19, 2024, introducing a principle of joint and several responsibility of both parents in protecting the minor’s image rights.
The status and remuneration of influencers: uncertainty persists
Despite the diversity of regulations applicable to influencers, none address their status and remuneration.
The status of the influencer
In the absence of regulations governing the status of influencers, a legal ambiguity persists regarding whether the influencer should be considered an independent contractor, an employee (as is partly the case for models or artists), or even as a brand representative (i.e. commercial agent), depending on the missions contractually entrusted to the influencer.
The nature of the contract and the applicable social security regime stem from the missions assigned to the influencer:
- In the case of an employment contract, the influencer will fall under the general regime for employees and assimilated persons, based on Articles L. 311-2 or 311-3 of the French Social Security Code.
- In the case of a service contract, the influencer will fall under the regime for self-employed workers.
The existence of a relationship of subordination between the advertiser and the influencer typically determines the qualification of an employment contract. Subordination is generally characterized when the employer gives orders and directives, has the power to control and sanction, and the influencer follows these directives. However, some activities are subject to a presumption of an employment contract; this is the case (at least in part) for artist contracts under Article L. 7121-3 of the French Labor Code and model contracts under Article L. 7123-2 of the French Labor Code.
The remuneration of the influencer
The influencer can be remunerated in cash (fixed or proportional) and/or in kind (for example: receiving a product from the brand, invitations to private or public events, coverage of travel expenses, etc.). The influencer’s remuneration must be specified in the influencer agreement and is directly impacted by the influencer’s status, as certain obligations (minimum wage, payment of social security contributions, etc.) apply in the case of an employment contract.
Furthermore, the remuneration (for the influencer’s services) must be distinguished from that of the transfer of their copyrights or image rights, which are subject to separate remuneration in exchange for the IP rights transferred.
The influencers… in the spotlight
The law of June 9, 2023, grants the French authority (i.e. the Consumer Affairs, Competition and Fraud Prevention Agency, “DGCCRF”) new injunction powers (with reinforced penalties). This comes in addition to the recent creation of a “commercial influence squad“, within the DGCCRF, tasked with monitoring social networks, and responding to reports received through Signal Conso. The law provides for fines and the possibility of blocking content.
As early as August 2023, the DGCCRF issued warnings to several influencers to comply with the new regulations on commercial influence and imposed on them the obligation to publicly disclose their conviction for non-compliance with the new provisions regarding transparency to consumers on their own social networks, a heavy penalty for actors whose activity relies on their popularity (DGCCRF investigation on the commercial practices of influencers).
On February 14, 2024, the European Commission and the national consumer protection authorities of 22 EU member states, Norway, and Iceland published the results of an analysis conducted on 570 influencers (the so-called “clean-up operation” of 2023 on influencers): only one in five influencers consistently presented their commercial content as advertising.
In response to environmental, ethical, and quality concerns related to “fast fashion,” a draft law aiming to ban advertising for fast fashion brands, including advertising done by influencers (Proposal for a law aiming to reduce the environmental impact of the textile industry), was adopted by the National Assembly on first reading on March 14, 2024.
Lastly, the law of June 9, 2023, has been criticized by the European Commission, which considers that the law would contravene certain principles provided by EU law, notably the principle of “country of origin,” according to which the company providing a service in other EU countries is exclusively subject to the law of its country of establishment (principle initially provided for by the E-commerce Directive of June 8, 2000, and included in the DSA). Some of its provisions, particularly those concerning the application of French law to foreign influencers, could therefore be subject to forthcoming – and welcome – modifications.
写信给 Renata
How to contract with Influencers in France
2024年4月11日
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法国
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Cross-border merger and acquisition (M&A) transactions are carefully structured. Lawyers negotiate risk allocation, manage regulatory exposure, and draft documents designed to withstand scrutiny across multiple jurisdictions. On paper, many of these transactions are sound.
And yet a surprising number of deals struggle to deliver their expected value.
When that happens, the problem isn’t in the paperwork. It’s in the people: Do they believe in the deal?
Belief starts with communication. If people don’t understand the deal, the documents won’t save it.
What Lawyers See vs. What Everyone Else Feels
For lawyers, a transaction is all about managing risk. Disclosure is deliberate. Regulatory exposure is controlled. Words matter, and for good reason.
For everyone else, it feels different.
Employees hear their company has been sold to a foreign buyer and start filling in the blanks. Customers wonder if priorities will change. Regulators look for patterns. Journalists hunt for a local angle.
These audiences are not reading the transaction documents. They are responding to fragments of information, hallway chatter, and media coverage.
The gap between legal precision and human interpretation is where many cross-border deals begin to drift.
Silence Is Not Neutral
Between announcement and closing, caution often turns into radio silence.
There are understandable reasons for this. Multiple disclosure regimes apply. Competition laws constrain what can be shared. Employment rules vary by jurisdiction. No one wants to say the wrong thing in the wrong place.
The problem? Silence rarely creates stability.
In the absence of credible information, people make up their own stories. These spread quickly inside the company and beyond. Once those narratives take hold, they’re hard to unwind, even when the official version finally comes out.
By the time integration teams are ready to engage, behaviour has already shifted. Trust has thinned. Momentum has slowed. Positions have hardened, and assumptions feel like facts.
One Deal, Many Interpretations
Cross-border transactions remove the safety net of shared assumptions.
What sounds confident in one country can come across as arrogant in another. An announcement that seems careful and responsible in one market may look evasive somewhere else. Expectations around consultation, transparency and leadership vary more than many deal teams expect.
That is why a single global message often falls flat.
The commercial logic needs to be consistent, but trust is built locally. That means understanding who people listen to in each market and what they are actually worried about.
When uncertainty sets in, people protect their turf. Roles get guarded. Silos harden. Decisions slow as teams focus on keeping influence instead of building something new.
When communication misses this, the impact is rarely dramatic at first. It shows up slowly, through disengagement, resistance and delay.
Employees Decide Earlier Than You Think
For employees, M&A feels personal long before it feels strategic.
They want to know how decisions will be made, whether local expertise still matters, and what the deal means for their job and future. They don’t expect certainty, but they do expect straight answers.
Vague reassurances can create more anxiety than simply acknowledging what is not yet known.
Managers sit at the centre of this dynamic. They are more trusted than corporate communications but often lack the tools to explain what the deal means in practice. When they lack clarity, uncertainty spreads quickly and becomes entrenched.
Change is rarely the problem. Employees’ fear of losing their role, influence, identity, or stability drives disengagement.
External Attention Changes the Equation
Cross-border deals attract public and political scrutiny that domestic transactions often do not.
Foreign ownership, jobs, and national interest are not abstract concerns. They shape how regulators act and how quickly questions escalate. Media expectations differ widely. In some places, restraint signals seriousness. In others, it looks suspicious.
Internal uncertainty has a way of becoming visible externally. Customers and partners often sense it before leadership does.
Why This Matters for Deal Counsel
For lawyers advising on cross-border M&A, communication is not a branding exercise. It is part of deal execution.
Poorly sequenced communication can complicate regulatory engagement. Inconsistent messaging can undermine management credibility. Prolonged silence can make integration harder than it needs to be.
Handled well, communication supports the legal strategy rather than undercutting it. It helps ensure that what can be said, and what cannot, aligns with how people actually receive and interpret information in different markets. It reduces friction instead of creating it.
The most effective deal teams treat communication as core infrastructure. They build it in early, tailor it to each market, and know that trust comes from what’s said, what’s acknowledged, and who delivers the message.
A simple test applies: If the people affected by the deal can’t explain, in their own words, why it makes sense, the communication hasn’t worked.
Cross-border M&A rarely fails because advisers lack skill. It fails because the human side gets addressed too late.
For lawyers navigating these deals, spotting communication risk early can mean the difference between a deal that just closes, and one that truly succeeds.
For more than 35 years as a commercial lawyer, I have seen how many of us, myself included, confused effective advice with immediate and exhaustive answers. Now I feel that the worlds of law and business are changing: it is not enough to know (more and more laws, more requirements, more contradictory rulings… and more noise), but rather to listen, accompany and facilitate decisions. And that is where acting also as an executive coach offers an extraordinarily useful framework.
Lawyers are expected to solve problems. Executive coaches, however, help others (within an ethical framework) to discover the answer for themselves. And this can be a source of enormous professional and client satisfaction. When clients are faced with a problem, they do not need a legal analysis, but rather clarity and perspective to decide… based on ‘their problem’, not ‘our solution’. Integrating executive coaching tools into our professional practice transforms legal conversations and advice into something more effective: a decision-making process in which we accompany the client from start to finish.
I can think of three areas where the legal advisor and the executive coach meet:
- The relationship with the client. Listen carefully before advising.
Plutarch said that ‘listening well is the basis of living well’. And sometimes the client is not so much looking for an answer as for clarity in order to make a decision. Listening beyond what they say (and what they don’t say) allows us to understand what concerns them. A question can open up more avenues than a lecture, which will most likely leave them cold. When we listen without rushing and without bias, we create a space for reflection that helps clients to organise, prioritise and make meaningful decisions. Meaningful… for them.
- Negotiation and mediation.
In these processes, we use coaching techniques to help defuse resistance and move from confrontation to understanding. The lawyer-coach facilitates the parties listening to each other and discovering what lies behind their demands. A negotiation can be unblocked when the other party is allowed to express themselves. Agreements cease to be mere transactions and become shared decisions, which are more stable and sustainable over time and less likely to be sources of conflict.
- Accompanying processes of change in the client and their organisation
The lawyer-coach can become not only the drafter of the agreement but also the facilitator of change. They help those involved to understand what is at stake and align decisions with their values and objectives by managing resistance. The solicitor ceases to be a mere ‘provider’ of services (who is often only called upon at the end of the process) and becomes a partner in reflection.
In short, I perceive that today we are required to practise differently: less technical and more human, less reactive and more transformative. Coaching techniques help: conscious listening, constructive feedback, clarity of purpose… they allow us to better manage conflict, stress and uncertainty. Coaching, of course, does not replace the law, but rather broadens it and provides it with tools. Now, artificial intelligence (much faster and potentially much more comprehensive and exhaustive) is displacing us from our habits. Perhaps this allows us to glimpse that lawyers should not only be experts in rules, but also facilitators of difficult conversations, someone capable of combining analysis and empathy, precision and presence. Someone who understands that their value lies in helping their clients avoid conflicts or resolve them in the way that best suits them. And that is where the lawyer-coach has a lot to contribute.
How real estate tokenisation works, what is the regulatory framework, and what rights investors actually acquire?
Real estate tokenisation, already present in Spain for several years, is no longer a futuristic promise but a tangible reality in the Spanish market. It represents more than just a technological innovation: it signifies a profound transformation in how we understand ownership, investment, and liquidity within the real estate sector — one of the most traditional and tightly regulated areas of our economy.
What is real estate tokenisation and how does it work?
In essence, to tokenise a property today means converting the economic rights associated with that asset into digital units that can circulate on blockchain-based platforms. Each token represents a fraction of those economic rights, allowing investors with more modest capital to access a market that has traditionally required substantial investments.
The role of smart contracts
Tokens operate through smart contracts that automatically execute the distribution of rental income or resale proceeds of that partial representation of the property, including any potential difference in value, eliminating intermediaries and providing transparency to the process. This automation is not merely cosmetic: it reduces operational costs, speeds up transactions, and potentially increases the liquidity of assets that have historically been among the least liquid in the market.
The legal reality: what is actually tokenised in Spain
It is essential to clarify from the outset a key point often blurred by marketing discourse: in practice, real estate tokenisation projects in Spain do not tokenise the property itself but rather the economic rights linked to a corporate vehicle (usually a special purpose vehicle, or SPV) that owns the property. Spanish law only allows the tokenisation of shares in joint-stock companies (sociedades anónimas) using distributed ledger technology; shares in limited liability companies (sociedades limitadas) cannot be tokenised. This means that if the SPV is a limited liability company, its shares cannot be directly tokenised — only other instruments such as participative loans or credit rights over income streams can be represented as tokens. Only if the SPV is incorporated as a joint-stock company is it legally possible to tokenise its shares.
What rights does a real estate token investor actually acquire?
An investor who acquires a token does not become a direct co-owner of the property. Depending on the structure chosen, they may become a shareholder in a tokenised joint-stock company that owns the property or a holder of economic rights derived from participative loans or other indirect forms of economic participation issued by the SPV that owns the asset. The distinction is crucial: if the company faces solvency issues or bankruptcy, the value of the token collapses with it, and the investor cannot exercise any direct real rights over the property.
Spanish law, rooted in centuries of land registry tradition, does not currently allow the transfer of real property rights through the mere transfer of tokens; a public deed and registration are required for the transfer to be effective against third parties. The SPV structure is therefore a compromise between technological possibilities and the demands of the current legal framework.
Regulatory framework for real estate tokenisation in Spain
CNMV authorisation and the 2023 Securities Market Law
The Spanish regulator has begun to establish a legal foundation for this technology to develop within a secure framework. In 2023, the Spanish National Securities Market Commission (CNMV) authorised Adventurees Capital PFP as the first crowdfunding platform to issue tokenised securities — a milestone in the convergence of crowdfunding and blockchain. This authorisation was accompanied by the approval of Law 6/2023 on the Securities Market, which expressly recognises the representation of transferable securities through distributed ledger technologies such as blockchain, granting them full legal validity.
The role of the Land Registry in the blockchain era
In parallel, the Spanish Association of Land Registrars is exploring how to integrate blockchain technology into the registry system, although it is important to clarify the real scope of these initiatives. Current projects focus mainly on complementary applications such as digital management of the Building Book or improved traceability and accessibility of registry information. They do not aim to replace the fundamental pillars of the system: execution of public deeds before a notary and registration of ownership, which remain absolutely mandatory for the transfer of real rights over property. Registrars are firm in their institutional stance: blockchain can complement and streamline document management, but it cannot replace the legal control exercised by the registrar or the protection of third parties offered by the Land Registry — both essential components of the Spanish legal system. This position reflects the current limitation of the model: tokens circulate on the blockchain representing positions in SPVs or economic rights over them, but the actual ownership of the property remains anchored in the traditional registry system, held by the corporate vehicle, and any transfer of that ownership must still follow the conventional legal process with all its guarantees.
European regulation: ECSPR, MiCA and the DLT Pilot Regime
Spain also benefits from a European regulatory framework that is positioning the EU as a global leader in digital asset regulation. The European Crowdfunding Service Providers Regulation (ECSPR) harmonises the rules for crowdfunding platforms, allowing an authorised platform in one Member State to operate across the EU through the so-called “European passport”. The MiCA Regulation, which came fully into force on 30 December 2024, broadly regulates crypto-asset markets, setting obligations for both issuers and service providers. The DLT Pilot Regime (EU Regulation 2022/858) allows market infrastructures based on distributed ledger technology to operate under certain temporary exemptions, creating a controlled testing environment to assess the potential of these technologies in financial markets.
The Spanish regulator’s approach could be described as cautiously supportive: innovation is encouraged, but strict compliance with anti-money laundering, customer identification, and disclosure obligations is required to protect investors. This is not technological laissez-faire, but rather an effort to integrate innovation within a solid framework of legal guarantees.
Legal challenges and risks of real estate tokenisation
The risks of the SPV structure
The legal challenges that remain are significant and deserve attention. The SPV structure, while legally viable, introduces an additional layer of complexity and risk that must be clearly communicated to investors. Unlike direct ownership — where the investor holds real rights over the property enforceable against third parties — in the current tokenised model, investors hold positions in indirect forms of economic participation (shares, participative loans, credit rights) linked to the company that owns the property. This has important implications for corporate liability, taxation, and insolvency protection.
The disconnect between the on-chain and off-chain worlds
It is also essential to understand that the connection between the “on-chain” world (where tokens circulate) and the “off-chain” world (where property rights are recorded) is neither direct nor automatic. Transferring a token does not in itself alter the Land Registry: ownership of the property remains with the SPV regardless of who holds the tokens, and only a duly notarised and registered deed can change that ownership. The exploratory projects of the Land Registrars aim to improve efficiency in information management but do not alter this fundamental principle. As in any emerging market, it is essential to prevent fraudulent schemes that promise unrealistic returns or market tokens without proper legal backing.
Practical implications for investors and legal practitioners
For legal practitioners, real estate tokenisation may require adapting contracts, corporate bylaws, and financing structures to an environment where rights circulate digitally and in a decentralised manner. For investors, it offers an opportunity to diversify portfolios with smaller capital contributions and greater liquidity potential than traditional real estate investment, provided they understand that they are not acquiring direct ownership of the property but rather a financial position linked to the corporate structure that owns it. And for the wider economy, it could invigorate a real estate market worth trillions of euros by facilitating the entry of retail capital previously excluded from such investments.
The future of real estate tokenisation in Spain
This is an evolution that combines law, technology, and finance in an inseparable way. It is essential to understand that tokenisation is not a passing trend but a tool that, when properly used and regulated, can transform access to one of society’s most valuable assets — property. However, this transformation currently operates through intermediate corporate structures and indirect forms of economic participation, not through direct ownership as commercial language sometimes suggests. It certainly does not imply an immediate revolution of Spain’s land registration system, whose fundamental guarantees remain intact.
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.
Since the General Data Protection Regulation (GDPR) took effect in 2018, the European Union (EU) has granted adequacy status to only a limited number of jurisdictions — those whose data protection regimes are deemed to provide an “essentially equivalent” level of protection to that of the EU. The current list includes Andorra, Argentina, Canada (under PIPEDA), Faroe Islands, Guernsey, Isle of Man, Israel, Japan, Jersey, New Zealand, South Korea, Switzerland, Uruguay, the United Kingdom, and the United States (limited to companies certified under the Data Privacy Framework).
As of 5 September 2025, Brazil is on the verge of joining this exclusive group. The European Commission has issued a draft adequacy decision concluding that the Brazilian General Data Protection Law (Lei Geral de Proteção de Dados Pessoais – LGPD), in conjunction with Brazil’s broader legal and constitutional framework, offers protections that are essentially equivalent to those found in the GDPR. While Brazil’s rules offer somewhat more flexibility in specific areas of data processing, the foundational principles and safeguards are well-aligned with EU standards.
Once finalized, the adequacy decision will authorize the free flow of personal data from the EU to Brazil without the need for additional contractual clauses or technical safeguards. Such a development is not just regulatory — it also answers a core political argument made by LGPD advocates since its inception: that the absence of a comprehensive data protection framework was undermining Brazil’s international competitiveness by limiting data flows and discouraging investment. For businesses, the EU decision may finally mean the removal of a significant layer of compliance complexity — a development especially welcome by small and medium-sized enterprises engaged in cross-border trade or service provision. The draft is currently under review by the European Data Protection Board (EDPB) and the Member States of the EU.
The Commission’s assessment highlights several key aspects of Brazil’s data protection landscape. It begins by noting that the Brazilian Constitution expressly guarantees the right to privacy and the protection of personal data — a notable distinction among non-EU jurisdictions. These protections are further supported by Brazil’s ratification of the American Convention on Human Rights and its recognition of the jurisdiction of the Inter-American Court of Human Rights, reinforcing a commitment to fundamental rights and democratic oversight.
The LGPD mirrors the GDPR in many critical respects and defines its territorial scope clearly. It applies to: (i) data processing carried out within Brazilian territory, (ii) the offering of goods or services to individuals in Brazil, and (iii) data collected in Brazil, even if subsequently processed abroad. This aligns well with the extraterritorial provisions of the GDPR. The definitions of personal data, sensitive data, controller, and processor are materially similar, as are the key principles governing processing — including lawfulness, purpose limitation, data minimization, accuracy, transparency, and security. The law expressly excludes anonymized data from its scope and establishes specific exemptions for journalistic activities, public security, and scientific research.
Another strength is Brazil’s institutional framework. The National Data Protection Authority (ANPD) was recently transformed into an autonomous regulatory agency, enhancing its independence and technical capacity. The ANPD holds both regulatory and enforcement powers: it can issue binding regulations, impose administrative sanctions, and publish authoritative guidance. To date, it has issued key guidelines on topics such as consent, legitimate interest, the role of the Data Protection Officer (DPO), and security incident reporting. Internationally, the ANPD is an active participant in global data protection dialogue — it is a member of the Global Privacy Assembly and an official observer to the Council of Europe’s Convention 108.
The LGPD’s approach to international data transfers is also structurally aligned with the GDPR. It requires appropriate safeguards such as standard contractual clauses, allows for future adequacy decisions under a regime comparable to Article 45 of the GDPR, and includes detailed provisions for onward transfers and transit data — that is, data merely passing through Brazil without further processing. The rights of data subjects are robust and familiar to European practitioners: access, rectification, erasure, portability, and withdrawal of consent are guaranteed. Lawful bases for processing are also aligned — including consent, legal obligations, contract execution, and legitimate interest. Notably, the LGPD requires a documented balancing test when relying on legitimate interest, bringing additional accountability to this flexible legal basis.
Security incidents involving personal data must be notified to both the ANPD and affected data subjects when there is a significant risk of harm. The standard notification deadline is 72 hours, and the required content aligns closely with Articles 33 and 34 of the GDPR. The ANPD may also order public disclosure of incidents or require remedial measures, depending on the nature and scope of the breach.
Importantly, this process is not one-sided. In parallel to the European Commission’s adequacy decision, the ANPD is conducting its own adequacy assessment of the EU and EEA data protection frameworks. This process is regulated by the Brazilian Resolution CD/ANPD No. 19/2024, which governs international data transfers. Once the technical and legal evaluation is complete, the ANPD’s Board of Directors will issue a formal decision. This reciprocal move reflects Brazil’s commitment to mutual recognition and regulatory symmetry — a positive signal for companies on both sides of the Atlantic.
In conclusion: If confirmed, Brazil’s adequacy status will simplify international operations, reduce compliance costs, and expand opportunities for data-driven business and legal cooperation. For European lawyers advising SMEs with interests in Latin America, this development is a strategic signal: Brazil is emerging not just as a growing market, but as a legally compatible and data-safe jurisdiction for international partnerships.
Remember the USA – EU agreement on 15% tariffs? I wrote that with a negotiator like Trump the game is never over (article here) and—after the recent interlude featuring a threat of 100% tariffs on pharmaceuticals—the U.S. government has announced the imposition of an overall 107% duty on Italian pasta, which could take effect on January 1, 2026.
Where this new duty comes from
The antidumping investigation was launched by the U.S. Department of Commerce at the request of certain competing American companies and is based on a 1996 antidumping order that allows for periodic reviews of imports of Italian pasta. The Department of Commerce conducts these checks annually to assess whether Italian producers are selling pasta at prices lower than the U.S. domestic market, a practice known as “dumping.”
Companies involved in the investigation
The Department of Commerce selected two sample companies for in-depth analysis, defined as “mandatory respondents”: La Molisana and Pastificio Lucio Garofalo. According to the official document published by the U.S. administration, for the period from July 1, 2023 to June 30, 2024, both companies allegedly sold their products below market prices, resulting in the imposition of a duty of 91.74%.
U.S. authorities justified this percentage by claiming the two companies did not provide complete or compliant information as requested by the Department and were therefore insufficiently cooperative during the investigation. What is very important is that, in addition to the two companies directly examined, the additional 91.74% duty is also applied to numerous other Italian producers not individually reviewed. This methodology, while formally permitted under U.S. law as an exception, is being applied without any direct verification of the other companies.
Next steps in the procedure
Italy’s Ministry of Foreign Affairs moved immediately, formally intervening in the proceeding as an “interested party” through the Italian Embassy in Washington. The Foreign Ministry is working in close coordination with the companies concerned and, in concert with the European Commission, to persuade the U.S. Department to revise the provisional duties.
The two companies involved (La Molisana and Garofalo) can submit documentation to contest the dumping allegations. However, if dumping is confirmed, the Department of Commerce will instruct Customs to apply antidumping duties on goods sold and entered into U.S. commerce.
The preliminary nature of this determination means there is still room to change the decision before it becomes final.
Possible effective date
The new super-duty of 91.74%, which will be added to the existing 15% tariff for a total of 107%, is scheduled to take effect on January 1, 2026. This date therefore represents a crucial deadline for all ongoing diplomatic and legal actions.
If confirmed, the economic impact would be significant: in 2024, Italian pasta exports to the United States reached a value of €671 million according to Coldiretti, accounting for nearly 17% of the sector’s total exports. A 107% duty would risk seriously undermining competitiveness in one of the most important markets for Italian agri-food products.
What to do between now and January 1, 2026?
At this stage, the entry into force of the new duty depends on the outcome of the ongoing procedure: given what has happened in recent months, and the political use the U.S. administration has made of tariffs—well beyond their technical function—it is reasonable to be pessimistic.
So, what to do? In recent months we have seen companies react to the uncertainty over the fate of the tariffs in three ways:
- Some rushed to ship as many products as possible before the potential effective date of the duty;
- Some granted—upfront—discounts equivalent to the threatened duty, in case it came into force;
- Some suspended orders, pending definitive news on the impact of the duties.
These are all valid options, but other effective tools for managing the uncertainty caused by the flurry of announcements, negotiations, and threats from the U.S. administration should not be forgotten: the risk of new duties being introduced, or existing ones being increased, can be managed in the contract by agreeing with the U.S. importer how any tariff change will affect the product.
The parties can stipulate, for example, that the increase will be split equally; or that the importer will bear it beyond a certain threshold; or that if the duty exceeds a certain level, the contracts may be terminated. You can find a deeper dive in this article.
The only certainty is that trade relations with the U.S. will stay unpredictable for a long time, and it’s vital to carefully manage the risk factors involved in selling products there. Right now, the focus is on tariffs and prices, and I encourage you to take this chance to thoroughly review existing agreements and assess whether—and how—other important points are addressed that could entail significant liabilities: we discuss them, very practically, in this book.
A dedicated notary account in Brazil is a legal mechanism that brings greater security, transparency, and reliability to financial transactions. Regulated under Law 8.935/1994 and Provision No. 197/2025, this service allows notaries to receive, manage, and release funds only after contractual conditions have been fulfilled. By ensuring segregation of assets, traceability, and impartial oversight, dedicated notary accounts provide an effective escrow-like solution for real estate deals, mergers and acquisitions, import/export operations, high-value asset purchases, and complex commercial contracts. This tool not only reduces legal risks and potential disputes but also strengthens trust between parties by guaranteeing that payments are safeguarded until obligations are met.
The legal basis can be found in Law 8.935/1994, § 1 of art. 7-A, which allows notaries to receive, deposit, and manage amounts related to legal transactions, with transactions subject to objectively verifiable facts/conditions. Provision No. 197, dated June 13, 2025, regulates, at the national level, the service of notarial accounts linked to Notary Public Offices.
Practical applications: among others, in the following transactions:
- Real estate: guarantee that the down payment and settlement amounts will be secured in a specific account. This mitigates the risk of misappropriation of funds and ensures that the money will be released only after all contractual conditions have been met.
- M&A: the linked notarial account creates a standardized escrow mechanism for the payment of price/holdbacks/earn-outs and conditional obligations.
- Purchase and Sale of High-Value Movable Property: the linked account can be used to guarantee payment. The buyer deposits the amount and the seller knows that the money is safe, being released only after the transfer of ownership and delivery of the goods.
- Import and Export: the transaction amount can be deposited with the notary and released to the exporter only after confirmation of delivery of the goods in the destination country, for example.
- Guarantee of Obligations: In any contract that provides for the payment of a sum of money as a guarantee, the notary account can be used to provide greater security to the parties.
- Supply, EPC/turnkey, and construction contracts: performance retentions, milestone acceptance (commissioning, as-built, issuance of ART/CREA), and payment against formal acceptance.
- Contractual joint ventures and commercial partnerships: advances conditional on licenses, authorizations, or competitive approval, where applicable.
Reduction of Legal Risks: The use of linked accounts reduces the chances of litigation related to lack of clarity about the origin and destination of funds. Companies can clearly demonstrate that payments were made and held by an impartial and secure institution.
Operational structure: limited to banking entities affiliated with the CNB, which must ensure the segregation of assets, traceability through audit trails, and proof of all transactions. The authorization of the delegate requires prior accreditation and electronic registration of the essential details of the transaction and its conditions in the CNB system, with access restricted to the parties and the notary.
Specific Purpose: amounts received as payment, guarantee, or advance payment as a result of notarial acts must be deposited in a bank account linked to the specific act and may only be moved for the purpose for which they are intended.
Transparency and Traceability: With the linked notarial account, it is possible to clearly track the financial flow of each transaction, which increases transparency for all parties and for supervisory bodies.
Verification of conditions and release. Once the objective conditions have been met, the notary authorizes the transfer to the recipients and files the proof of verification. In the event of a dispute between the parties, the notary suspends any movement, draws up a notarial deed, and advises on a consensual or judicial solution, without deciding on the effectiveness/termination of the transaction; if the transaction is frustrated and no solution is found, the procedure is terminated and the amounts are returned to the depositor, in accordance with the agreed clauses.
Confidentiality and access. In transactions with a confidentiality clause, the notary public maintains confidentiality and does not issue certificates regarding the content of the transaction; documents are accessible only for correctional purposes or by court order.
Remuneration and costs. The notary’s remuneration for the notarial account service is paid by the financial institution under the terms of the agreement, and the transfer of additional costs to the user is prohibited, without prejudice to fees for any related notarial acts.
Given the significance of the influencer market (over €21 billion in 2023), which now encompasses all sectors, and with a view for transparency and consumer protection, France, with the law of June 9, 2023, proposed the world’s first regulation governing the activities of influencers, with the objective of defining and regulating influencer activities on social media platforms.
However, influencers are subject to multiple obligations stemming from various sources, necessitating the utmost vigilance, both in drafting influence agreements (between influencers and agencies or between influencers and advertisers) and in the behaviour they must adopt on social media or online platforms. This vigilance is particularly heightened as existing regulations do not cover the core of influencers’ activities, especially their status and remuneration, which remain subject to legal ambiguity, posing risks to advertisers as regulatory authorities’ scrutiny intensifies.
Key points to remember
- Influencers’ activity is subject to numerous regulations, including the law of June 9, 2023.
- This law not only regulates the drafting of influence contracts but also the influencer’s behaviour to ensure greater transparency for consumers.
- Every influencer whose audience includes French users is affected by the provisions of the law of June 9, 2023, even if they are not physically present in French territory.
- Both the law of June 9, 2023, and the “Digital Services Act,” as well as the proposed law on “fast fashion,” foresee increasing accountability for various actors in the commercial influence sector, particularly influencers and online platforms.
- Despite a plethora of regulations, the status and remuneration of influencers remain unaddressed issues that require special attention from advertisers engaging with influencers.
The law of June 9, 2023, regulating influencer activity
The definition of influencer professions
The law of June 9, 2023, provides two essential definitions for influencer activities:
- Influencers are defined as ‘natural or legal persons who, for consideration, mobilize their notoriety with their audience to communicate to the public, electronically, content aimed at promoting, directly or indirectly, goods, services, or any cause, engaging in commercial influence activities electronically.’
- The activity of an influencer agent is defined as ‘that which consists of representing, for consideration,’ the influencer or a possible agent ‘with the aim of promoting, for consideration, goods, services, or any cause‘ (article 7) The influencer agent must take ‘necessary measures to ensure the defense of the interests of the persons they represent, to avoid situations of conflict of interest, and to ensure the compliance of their activity‘ with the law of June 9, 2023.
The obligations imposed on commercial messages created by the influencer
The law sets forth obligations that influencers must adhere to regarding their publications:
- Mandatory particulars: When creating content, this law imposes an obligation on influencers to provide information to consumers, aiming for transparency towards their audience. Thus, influencers are required to clearly, legibly, and identifiably indicate on the influencer’s image or video, regardless of its format and throughout the entire viewing duration (according to modalities to be defined by decree):
– The mention “advertisement” or “commercial collaboration.” Violating this obligation constitutes deceptive commercial practice punishable by two years’ imprisonment and a fine of €300,000 (Article 5 of the law of June 9, 2023).
– The mention of “altered images” (modification by image processing methods aimed at refining or thickening the silhouette or modifying the appearance of the face) or “virtual images” (images created by artificial intelligence). Failure to do so may result in a one-year prison sentence and a fine of €4,500 (Article 5 of the law of June 9, 2023).
- Prohibited or regulated promotions: This law reminds certain prohibitions, subject to criminal and administrative sanctions, stemming from French law on the direct or indirect promotion of certain categories of products and services, under penalty of criminal or administrative sanctions. This includes the promotion of products and services related to:
– health: surgery, aesthetic medicine, therapeutic prescriptions, and nicotine products;
– non-domestic animals, unless it concerns an establishment authorized to hold them;
– financial: contracts, financial products, and services;
– sports-related: subscriptions to sports advice or predictions;
– crypto assets: if not from registered actors or have not received approval from the AMF;
– gambling: their promotion prohibited for those under 18 years old and regulated by law;
– professional training: their promotion is not prohibited but regulated.
The accountability of influencer behaviour
The law also holds influencers accountable from the contracting of their relationships and when they act as sellers:
- Regulation of commercial influence agreements: This law imposes, subject to nullity, from a certain threshold of influencer remuneration (defined by decree), the formalization in writing of the agreement between the advertiser and the influencer, but also, if applicable, between the influencer’s agent, and the mandatory stipulation of certain clauses (remuneration, mission description, etc.).
- Influencer responsibility as a cyber seller: Influencers engaging in drop shipping (selling products without handling their delivery, done by the supplier) must provide the buyer with all information in French as required by Article L. 221-5 of the Consumer Code about the product, such as its availability and legality (i.e., guarantee that the product is not counterfeit), applicable product warranty, and supplier identity. Additionally, influencers must ensure the proper delivery and receipt of products and, in case of default, compensate the buyer. Influencers are also logically subject to obligations regarding deceptive commercial practices (for more information, the DGCCRF website explain the dropshipping).
The accountability of other actors in the commercial influence ecosystem
Joint and several liability is set by law, for the advertiser, influencer, or influencer’s agent for damages caused to third parties in the execution of the commercial influence contract, allowing the victim of the damage to act against the most solvent party.
Furthermore, the law introduces accountability for online platforms by partially incorporating the European Regulation 2022/2065 on digital services (known as the “DSA“) of October 19, 2022.
French regulation and international influencers
Influencers established outside the European Union (including also Switzerland and the EEA) who promote products or services to a French audience must obtain professional liability insurance from an insurer established within the EU. They must also designate a legal or natural person providing “a form of representation” (SIC) within the EU. This representative (whose regime is not very clear) is remunerated to represent the influencer before administrative and judicial authorities and to ensure the compliance of the influencer’s activity with law of June 9, 2023.
Furthermore, according to law of June 9, 2023, when the contract binding the influencer (or their agency) aims to implement a commercial influence activity electronically “targeting in particular an audience established in French territory” (SIC), this contract should be exclusively subject to French law (including the Consumer Code, the Intellectual Property Code, and the law of June 9, 2023). According to this law, the absence of such a stipulation would be sanctioned by the nullity of the contract. Law of June 9, 2023, seems to be established as an overriding mandatory law capable of setting aside the choice of a foreign law.
However, the legitimacy (what about compliance with the definition of overriding mandatory rules established by Regulation Rome I?) and effectiveness (what if the contract specifies a foreign law and a foreign jurisdiction?) of such a legal provision can be questioned, notably due to its vague and general wording. In fact, it should be the activity deployed by the “foreign” influencer to their community in France that should be apprehended by French overriding mandatory rules, rather than the content of the agreement concluded with the advertiser (which itself could also be foreign, by the way).
The other regulations governing the activity of influencers
The European regulations
The DSA further holds influencers accountable because, in addition to the reporting mechanism imposed on platforms to report illicit content (thus identifying a failing influencer), platforms must ensure (and will therefore shift this responsibility to the influencer) the identification of commercial communications and specific transparency obligations towards consumers.
The «soft law»
As early as 2015, the Advertising Regulatory Authority (“ARPP”) issued recommendations on best practices for digital advertising. Similarly, in March 2023, the French Ministry of Economy published a “code of conduct” for influencers and content creators. In 2023, the European Commission launched a legal information platform for influencers. Although non-binding, these rules, in addition to existing regulations, serve as guidelines for both influencers and content creators, as well as for judicial and administrative authorities.
The special status of child influencers
The law of October 19, 2020, aimed at regulating the commercial exploitation of children’s images on online platforms, notably opens up the possibility for child influencers to be recognized as salaried workers. However, this law only targeted video-sharing platforms. Article 2 of the law of June 9, 2023, extended the provisions regarding child influencer labor introduced by the 2020 law to all online platforms. Finally, a recent law aimed at ensuring respect for the image rights of children was published on February 19, 2024, introducing a principle of joint and several responsibility of both parents in protecting the minor’s image rights.
The status and remuneration of influencers: uncertainty persists
Despite the diversity of regulations applicable to influencers, none address their status and remuneration.
The status of the influencer
In the absence of regulations governing the status of influencers, a legal ambiguity persists regarding whether the influencer should be considered an independent contractor, an employee (as is partly the case for models or artists), or even as a brand representative (i.e. commercial agent), depending on the missions contractually entrusted to the influencer.
The nature of the contract and the applicable social security regime stem from the missions assigned to the influencer:
- In the case of an employment contract, the influencer will fall under the general regime for employees and assimilated persons, based on Articles L. 311-2 or 311-3 of the French Social Security Code.
- In the case of a service contract, the influencer will fall under the regime for self-employed workers.
The existence of a relationship of subordination between the advertiser and the influencer typically determines the qualification of an employment contract. Subordination is generally characterized when the employer gives orders and directives, has the power to control and sanction, and the influencer follows these directives. However, some activities are subject to a presumption of an employment contract; this is the case (at least in part) for artist contracts under Article L. 7121-3 of the French Labor Code and model contracts under Article L. 7123-2 of the French Labor Code.
The remuneration of the influencer
The influencer can be remunerated in cash (fixed or proportional) and/or in kind (for example: receiving a product from the brand, invitations to private or public events, coverage of travel expenses, etc.). The influencer’s remuneration must be specified in the influencer agreement and is directly impacted by the influencer’s status, as certain obligations (minimum wage, payment of social security contributions, etc.) apply in the case of an employment contract.
Furthermore, the remuneration (for the influencer’s services) must be distinguished from that of the transfer of their copyrights or image rights, which are subject to separate remuneration in exchange for the IP rights transferred.
The influencers… in the spotlight
The law of June 9, 2023, grants the French authority (i.e. the Consumer Affairs, Competition and Fraud Prevention Agency, “DGCCRF”) new injunction powers (with reinforced penalties). This comes in addition to the recent creation of a “commercial influence squad“, within the DGCCRF, tasked with monitoring social networks, and responding to reports received through Signal Conso. The law provides for fines and the possibility of blocking content.
As early as August 2023, the DGCCRF issued warnings to several influencers to comply with the new regulations on commercial influence and imposed on them the obligation to publicly disclose their conviction for non-compliance with the new provisions regarding transparency to consumers on their own social networks, a heavy penalty for actors whose activity relies on their popularity (DGCCRF investigation on the commercial practices of influencers).
On February 14, 2024, the European Commission and the national consumer protection authorities of 22 EU member states, Norway, and Iceland published the results of an analysis conducted on 570 influencers (the so-called “clean-up operation” of 2023 on influencers): only one in five influencers consistently presented their commercial content as advertising.
In response to environmental, ethical, and quality concerns related to “fast fashion,” a draft law aiming to ban advertising for fast fashion brands, including advertising done by influencers (Proposal for a law aiming to reduce the environmental impact of the textile industry), was adopted by the National Assembly on first reading on March 14, 2024.
Lastly, the law of June 9, 2023, has been criticized by the European Commission, which considers that the law would contravene certain principles provided by EU law, notably the principle of “country of origin,” according to which the company providing a service in other EU countries is exclusively subject to the law of its country of establishment (principle initially provided for by the E-commerce Directive of June 8, 2000, and included in the DSA). Some of its provisions, particularly those concerning the application of French law to foreign influencers, could therefore be subject to forthcoming – and welcome – modifications.
写信给 Christophe
How to manage price changes in the supply chain
2023年3月27日
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意大利
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Cross-border merger and acquisition (M&A) transactions are carefully structured. Lawyers negotiate risk allocation, manage regulatory exposure, and draft documents designed to withstand scrutiny across multiple jurisdictions. On paper, many of these transactions are sound.
And yet a surprising number of deals struggle to deliver their expected value.
When that happens, the problem isn’t in the paperwork. It’s in the people: Do they believe in the deal?
Belief starts with communication. If people don’t understand the deal, the documents won’t save it.
What Lawyers See vs. What Everyone Else Feels
For lawyers, a transaction is all about managing risk. Disclosure is deliberate. Regulatory exposure is controlled. Words matter, and for good reason.
For everyone else, it feels different.
Employees hear their company has been sold to a foreign buyer and start filling in the blanks. Customers wonder if priorities will change. Regulators look for patterns. Journalists hunt for a local angle.
These audiences are not reading the transaction documents. They are responding to fragments of information, hallway chatter, and media coverage.
The gap between legal precision and human interpretation is where many cross-border deals begin to drift.
Silence Is Not Neutral
Between announcement and closing, caution often turns into radio silence.
There are understandable reasons for this. Multiple disclosure regimes apply. Competition laws constrain what can be shared. Employment rules vary by jurisdiction. No one wants to say the wrong thing in the wrong place.
The problem? Silence rarely creates stability.
In the absence of credible information, people make up their own stories. These spread quickly inside the company and beyond. Once those narratives take hold, they’re hard to unwind, even when the official version finally comes out.
By the time integration teams are ready to engage, behaviour has already shifted. Trust has thinned. Momentum has slowed. Positions have hardened, and assumptions feel like facts.
One Deal, Many Interpretations
Cross-border transactions remove the safety net of shared assumptions.
What sounds confident in one country can come across as arrogant in another. An announcement that seems careful and responsible in one market may look evasive somewhere else. Expectations around consultation, transparency and leadership vary more than many deal teams expect.
That is why a single global message often falls flat.
The commercial logic needs to be consistent, but trust is built locally. That means understanding who people listen to in each market and what they are actually worried about.
When uncertainty sets in, people protect their turf. Roles get guarded. Silos harden. Decisions slow as teams focus on keeping influence instead of building something new.
When communication misses this, the impact is rarely dramatic at first. It shows up slowly, through disengagement, resistance and delay.
Employees Decide Earlier Than You Think
For employees, M&A feels personal long before it feels strategic.
They want to know how decisions will be made, whether local expertise still matters, and what the deal means for their job and future. They don’t expect certainty, but they do expect straight answers.
Vague reassurances can create more anxiety than simply acknowledging what is not yet known.
Managers sit at the centre of this dynamic. They are more trusted than corporate communications but often lack the tools to explain what the deal means in practice. When they lack clarity, uncertainty spreads quickly and becomes entrenched.
Change is rarely the problem. Employees’ fear of losing their role, influence, identity, or stability drives disengagement.
External Attention Changes the Equation
Cross-border deals attract public and political scrutiny that domestic transactions often do not.
Foreign ownership, jobs, and national interest are not abstract concerns. They shape how regulators act and how quickly questions escalate. Media expectations differ widely. In some places, restraint signals seriousness. In others, it looks suspicious.
Internal uncertainty has a way of becoming visible externally. Customers and partners often sense it before leadership does.
Why This Matters for Deal Counsel
For lawyers advising on cross-border M&A, communication is not a branding exercise. It is part of deal execution.
Poorly sequenced communication can complicate regulatory engagement. Inconsistent messaging can undermine management credibility. Prolonged silence can make integration harder than it needs to be.
Handled well, communication supports the legal strategy rather than undercutting it. It helps ensure that what can be said, and what cannot, aligns with how people actually receive and interpret information in different markets. It reduces friction instead of creating it.
The most effective deal teams treat communication as core infrastructure. They build it in early, tailor it to each market, and know that trust comes from what’s said, what’s acknowledged, and who delivers the message.
A simple test applies: If the people affected by the deal can’t explain, in their own words, why it makes sense, the communication hasn’t worked.
Cross-border M&A rarely fails because advisers lack skill. It fails because the human side gets addressed too late.
For lawyers navigating these deals, spotting communication risk early can mean the difference between a deal that just closes, and one that truly succeeds.
For more than 35 years as a commercial lawyer, I have seen how many of us, myself included, confused effective advice with immediate and exhaustive answers. Now I feel that the worlds of law and business are changing: it is not enough to know (more and more laws, more requirements, more contradictory rulings… and more noise), but rather to listen, accompany and facilitate decisions. And that is where acting also as an executive coach offers an extraordinarily useful framework.
Lawyers are expected to solve problems. Executive coaches, however, help others (within an ethical framework) to discover the answer for themselves. And this can be a source of enormous professional and client satisfaction. When clients are faced with a problem, they do not need a legal analysis, but rather clarity and perspective to decide… based on ‘their problem’, not ‘our solution’. Integrating executive coaching tools into our professional practice transforms legal conversations and advice into something more effective: a decision-making process in which we accompany the client from start to finish.
I can think of three areas where the legal advisor and the executive coach meet:
- The relationship with the client. Listen carefully before advising.
Plutarch said that ‘listening well is the basis of living well’. And sometimes the client is not so much looking for an answer as for clarity in order to make a decision. Listening beyond what they say (and what they don’t say) allows us to understand what concerns them. A question can open up more avenues than a lecture, which will most likely leave them cold. When we listen without rushing and without bias, we create a space for reflection that helps clients to organise, prioritise and make meaningful decisions. Meaningful… for them.
- Negotiation and mediation.
In these processes, we use coaching techniques to help defuse resistance and move from confrontation to understanding. The lawyer-coach facilitates the parties listening to each other and discovering what lies behind their demands. A negotiation can be unblocked when the other party is allowed to express themselves. Agreements cease to be mere transactions and become shared decisions, which are more stable and sustainable over time and less likely to be sources of conflict.
- Accompanying processes of change in the client and their organisation
The lawyer-coach can become not only the drafter of the agreement but also the facilitator of change. They help those involved to understand what is at stake and align decisions with their values and objectives by managing resistance. The solicitor ceases to be a mere ‘provider’ of services (who is often only called upon at the end of the process) and becomes a partner in reflection.
In short, I perceive that today we are required to practise differently: less technical and more human, less reactive and more transformative. Coaching techniques help: conscious listening, constructive feedback, clarity of purpose… they allow us to better manage conflict, stress and uncertainty. Coaching, of course, does not replace the law, but rather broadens it and provides it with tools. Now, artificial intelligence (much faster and potentially much more comprehensive and exhaustive) is displacing us from our habits. Perhaps this allows us to glimpse that lawyers should not only be experts in rules, but also facilitators of difficult conversations, someone capable of combining analysis and empathy, precision and presence. Someone who understands that their value lies in helping their clients avoid conflicts or resolve them in the way that best suits them. And that is where the lawyer-coach has a lot to contribute.
How real estate tokenisation works, what is the regulatory framework, and what rights investors actually acquire?
Real estate tokenisation, already present in Spain for several years, is no longer a futuristic promise but a tangible reality in the Spanish market. It represents more than just a technological innovation: it signifies a profound transformation in how we understand ownership, investment, and liquidity within the real estate sector — one of the most traditional and tightly regulated areas of our economy.
What is real estate tokenisation and how does it work?
In essence, to tokenise a property today means converting the economic rights associated with that asset into digital units that can circulate on blockchain-based platforms. Each token represents a fraction of those economic rights, allowing investors with more modest capital to access a market that has traditionally required substantial investments.
The role of smart contracts
Tokens operate through smart contracts that automatically execute the distribution of rental income or resale proceeds of that partial representation of the property, including any potential difference in value, eliminating intermediaries and providing transparency to the process. This automation is not merely cosmetic: it reduces operational costs, speeds up transactions, and potentially increases the liquidity of assets that have historically been among the least liquid in the market.
The legal reality: what is actually tokenised in Spain
It is essential to clarify from the outset a key point often blurred by marketing discourse: in practice, real estate tokenisation projects in Spain do not tokenise the property itself but rather the economic rights linked to a corporate vehicle (usually a special purpose vehicle, or SPV) that owns the property. Spanish law only allows the tokenisation of shares in joint-stock companies (sociedades anónimas) using distributed ledger technology; shares in limited liability companies (sociedades limitadas) cannot be tokenised. This means that if the SPV is a limited liability company, its shares cannot be directly tokenised — only other instruments such as participative loans or credit rights over income streams can be represented as tokens. Only if the SPV is incorporated as a joint-stock company is it legally possible to tokenise its shares.
What rights does a real estate token investor actually acquire?
An investor who acquires a token does not become a direct co-owner of the property. Depending on the structure chosen, they may become a shareholder in a tokenised joint-stock company that owns the property or a holder of economic rights derived from participative loans or other indirect forms of economic participation issued by the SPV that owns the asset. The distinction is crucial: if the company faces solvency issues or bankruptcy, the value of the token collapses with it, and the investor cannot exercise any direct real rights over the property.
Spanish law, rooted in centuries of land registry tradition, does not currently allow the transfer of real property rights through the mere transfer of tokens; a public deed and registration are required for the transfer to be effective against third parties. The SPV structure is therefore a compromise between technological possibilities and the demands of the current legal framework.
Regulatory framework for real estate tokenisation in Spain
CNMV authorisation and the 2023 Securities Market Law
The Spanish regulator has begun to establish a legal foundation for this technology to develop within a secure framework. In 2023, the Spanish National Securities Market Commission (CNMV) authorised Adventurees Capital PFP as the first crowdfunding platform to issue tokenised securities — a milestone in the convergence of crowdfunding and blockchain. This authorisation was accompanied by the approval of Law 6/2023 on the Securities Market, which expressly recognises the representation of transferable securities through distributed ledger technologies such as blockchain, granting them full legal validity.
The role of the Land Registry in the blockchain era
In parallel, the Spanish Association of Land Registrars is exploring how to integrate blockchain technology into the registry system, although it is important to clarify the real scope of these initiatives. Current projects focus mainly on complementary applications such as digital management of the Building Book or improved traceability and accessibility of registry information. They do not aim to replace the fundamental pillars of the system: execution of public deeds before a notary and registration of ownership, which remain absolutely mandatory for the transfer of real rights over property. Registrars are firm in their institutional stance: blockchain can complement and streamline document management, but it cannot replace the legal control exercised by the registrar or the protection of third parties offered by the Land Registry — both essential components of the Spanish legal system. This position reflects the current limitation of the model: tokens circulate on the blockchain representing positions in SPVs or economic rights over them, but the actual ownership of the property remains anchored in the traditional registry system, held by the corporate vehicle, and any transfer of that ownership must still follow the conventional legal process with all its guarantees.
European regulation: ECSPR, MiCA and the DLT Pilot Regime
Spain also benefits from a European regulatory framework that is positioning the EU as a global leader in digital asset regulation. The European Crowdfunding Service Providers Regulation (ECSPR) harmonises the rules for crowdfunding platforms, allowing an authorised platform in one Member State to operate across the EU through the so-called “European passport”. The MiCA Regulation, which came fully into force on 30 December 2024, broadly regulates crypto-asset markets, setting obligations for both issuers and service providers. The DLT Pilot Regime (EU Regulation 2022/858) allows market infrastructures based on distributed ledger technology to operate under certain temporary exemptions, creating a controlled testing environment to assess the potential of these technologies in financial markets.
The Spanish regulator’s approach could be described as cautiously supportive: innovation is encouraged, but strict compliance with anti-money laundering, customer identification, and disclosure obligations is required to protect investors. This is not technological laissez-faire, but rather an effort to integrate innovation within a solid framework of legal guarantees.
Legal challenges and risks of real estate tokenisation
The risks of the SPV structure
The legal challenges that remain are significant and deserve attention. The SPV structure, while legally viable, introduces an additional layer of complexity and risk that must be clearly communicated to investors. Unlike direct ownership — where the investor holds real rights over the property enforceable against third parties — in the current tokenised model, investors hold positions in indirect forms of economic participation (shares, participative loans, credit rights) linked to the company that owns the property. This has important implications for corporate liability, taxation, and insolvency protection.
The disconnect between the on-chain and off-chain worlds
It is also essential to understand that the connection between the “on-chain” world (where tokens circulate) and the “off-chain” world (where property rights are recorded) is neither direct nor automatic. Transferring a token does not in itself alter the Land Registry: ownership of the property remains with the SPV regardless of who holds the tokens, and only a duly notarised and registered deed can change that ownership. The exploratory projects of the Land Registrars aim to improve efficiency in information management but do not alter this fundamental principle. As in any emerging market, it is essential to prevent fraudulent schemes that promise unrealistic returns or market tokens without proper legal backing.
Practical implications for investors and legal practitioners
For legal practitioners, real estate tokenisation may require adapting contracts, corporate bylaws, and financing structures to an environment where rights circulate digitally and in a decentralised manner. For investors, it offers an opportunity to diversify portfolios with smaller capital contributions and greater liquidity potential than traditional real estate investment, provided they understand that they are not acquiring direct ownership of the property but rather a financial position linked to the corporate structure that owns it. And for the wider economy, it could invigorate a real estate market worth trillions of euros by facilitating the entry of retail capital previously excluded from such investments.
The future of real estate tokenisation in Spain
This is an evolution that combines law, technology, and finance in an inseparable way. It is essential to understand that tokenisation is not a passing trend but a tool that, when properly used and regulated, can transform access to one of society’s most valuable assets — property. However, this transformation currently operates through intermediate corporate structures and indirect forms of economic participation, not through direct ownership as commercial language sometimes suggests. It certainly does not imply an immediate revolution of Spain’s land registration system, whose fundamental guarantees remain intact.
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.
Since the General Data Protection Regulation (GDPR) took effect in 2018, the European Union (EU) has granted adequacy status to only a limited number of jurisdictions — those whose data protection regimes are deemed to provide an “essentially equivalent” level of protection to that of the EU. The current list includes Andorra, Argentina, Canada (under PIPEDA), Faroe Islands, Guernsey, Isle of Man, Israel, Japan, Jersey, New Zealand, South Korea, Switzerland, Uruguay, the United Kingdom, and the United States (limited to companies certified under the Data Privacy Framework).
As of 5 September 2025, Brazil is on the verge of joining this exclusive group. The European Commission has issued a draft adequacy decision concluding that the Brazilian General Data Protection Law (Lei Geral de Proteção de Dados Pessoais – LGPD), in conjunction with Brazil’s broader legal and constitutional framework, offers protections that are essentially equivalent to those found in the GDPR. While Brazil’s rules offer somewhat more flexibility in specific areas of data processing, the foundational principles and safeguards are well-aligned with EU standards.
Once finalized, the adequacy decision will authorize the free flow of personal data from the EU to Brazil without the need for additional contractual clauses or technical safeguards. Such a development is not just regulatory — it also answers a core political argument made by LGPD advocates since its inception: that the absence of a comprehensive data protection framework was undermining Brazil’s international competitiveness by limiting data flows and discouraging investment. For businesses, the EU decision may finally mean the removal of a significant layer of compliance complexity — a development especially welcome by small and medium-sized enterprises engaged in cross-border trade or service provision. The draft is currently under review by the European Data Protection Board (EDPB) and the Member States of the EU.
The Commission’s assessment highlights several key aspects of Brazil’s data protection landscape. It begins by noting that the Brazilian Constitution expressly guarantees the right to privacy and the protection of personal data — a notable distinction among non-EU jurisdictions. These protections are further supported by Brazil’s ratification of the American Convention on Human Rights and its recognition of the jurisdiction of the Inter-American Court of Human Rights, reinforcing a commitment to fundamental rights and democratic oversight.
The LGPD mirrors the GDPR in many critical respects and defines its territorial scope clearly. It applies to: (i) data processing carried out within Brazilian territory, (ii) the offering of goods or services to individuals in Brazil, and (iii) data collected in Brazil, even if subsequently processed abroad. This aligns well with the extraterritorial provisions of the GDPR. The definitions of personal data, sensitive data, controller, and processor are materially similar, as are the key principles governing processing — including lawfulness, purpose limitation, data minimization, accuracy, transparency, and security. The law expressly excludes anonymized data from its scope and establishes specific exemptions for journalistic activities, public security, and scientific research.
Another strength is Brazil’s institutional framework. The National Data Protection Authority (ANPD) was recently transformed into an autonomous regulatory agency, enhancing its independence and technical capacity. The ANPD holds both regulatory and enforcement powers: it can issue binding regulations, impose administrative sanctions, and publish authoritative guidance. To date, it has issued key guidelines on topics such as consent, legitimate interest, the role of the Data Protection Officer (DPO), and security incident reporting. Internationally, the ANPD is an active participant in global data protection dialogue — it is a member of the Global Privacy Assembly and an official observer to the Council of Europe’s Convention 108.
The LGPD’s approach to international data transfers is also structurally aligned with the GDPR. It requires appropriate safeguards such as standard contractual clauses, allows for future adequacy decisions under a regime comparable to Article 45 of the GDPR, and includes detailed provisions for onward transfers and transit data — that is, data merely passing through Brazil without further processing. The rights of data subjects are robust and familiar to European practitioners: access, rectification, erasure, portability, and withdrawal of consent are guaranteed. Lawful bases for processing are also aligned — including consent, legal obligations, contract execution, and legitimate interest. Notably, the LGPD requires a documented balancing test when relying on legitimate interest, bringing additional accountability to this flexible legal basis.
Security incidents involving personal data must be notified to both the ANPD and affected data subjects when there is a significant risk of harm. The standard notification deadline is 72 hours, and the required content aligns closely with Articles 33 and 34 of the GDPR. The ANPD may also order public disclosure of incidents or require remedial measures, depending on the nature and scope of the breach.
Importantly, this process is not one-sided. In parallel to the European Commission’s adequacy decision, the ANPD is conducting its own adequacy assessment of the EU and EEA data protection frameworks. This process is regulated by the Brazilian Resolution CD/ANPD No. 19/2024, which governs international data transfers. Once the technical and legal evaluation is complete, the ANPD’s Board of Directors will issue a formal decision. This reciprocal move reflects Brazil’s commitment to mutual recognition and regulatory symmetry — a positive signal for companies on both sides of the Atlantic.
In conclusion: If confirmed, Brazil’s adequacy status will simplify international operations, reduce compliance costs, and expand opportunities for data-driven business and legal cooperation. For European lawyers advising SMEs with interests in Latin America, this development is a strategic signal: Brazil is emerging not just as a growing market, but as a legally compatible and data-safe jurisdiction for international partnerships.
Remember the USA – EU agreement on 15% tariffs? I wrote that with a negotiator like Trump the game is never over (article here) and—after the recent interlude featuring a threat of 100% tariffs on pharmaceuticals—the U.S. government has announced the imposition of an overall 107% duty on Italian pasta, which could take effect on January 1, 2026.
Where this new duty comes from
The antidumping investigation was launched by the U.S. Department of Commerce at the request of certain competing American companies and is based on a 1996 antidumping order that allows for periodic reviews of imports of Italian pasta. The Department of Commerce conducts these checks annually to assess whether Italian producers are selling pasta at prices lower than the U.S. domestic market, a practice known as “dumping.”
Companies involved in the investigation
The Department of Commerce selected two sample companies for in-depth analysis, defined as “mandatory respondents”: La Molisana and Pastificio Lucio Garofalo. According to the official document published by the U.S. administration, for the period from July 1, 2023 to June 30, 2024, both companies allegedly sold their products below market prices, resulting in the imposition of a duty of 91.74%.
U.S. authorities justified this percentage by claiming the two companies did not provide complete or compliant information as requested by the Department and were therefore insufficiently cooperative during the investigation. What is very important is that, in addition to the two companies directly examined, the additional 91.74% duty is also applied to numerous other Italian producers not individually reviewed. This methodology, while formally permitted under U.S. law as an exception, is being applied without any direct verification of the other companies.
Next steps in the procedure
Italy’s Ministry of Foreign Affairs moved immediately, formally intervening in the proceeding as an “interested party” through the Italian Embassy in Washington. The Foreign Ministry is working in close coordination with the companies concerned and, in concert with the European Commission, to persuade the U.S. Department to revise the provisional duties.
The two companies involved (La Molisana and Garofalo) can submit documentation to contest the dumping allegations. However, if dumping is confirmed, the Department of Commerce will instruct Customs to apply antidumping duties on goods sold and entered into U.S. commerce.
The preliminary nature of this determination means there is still room to change the decision before it becomes final.
Possible effective date
The new super-duty of 91.74%, which will be added to the existing 15% tariff for a total of 107%, is scheduled to take effect on January 1, 2026. This date therefore represents a crucial deadline for all ongoing diplomatic and legal actions.
If confirmed, the economic impact would be significant: in 2024, Italian pasta exports to the United States reached a value of €671 million according to Coldiretti, accounting for nearly 17% of the sector’s total exports. A 107% duty would risk seriously undermining competitiveness in one of the most important markets for Italian agri-food products.
What to do between now and January 1, 2026?
At this stage, the entry into force of the new duty depends on the outcome of the ongoing procedure: given what has happened in recent months, and the political use the U.S. administration has made of tariffs—well beyond their technical function—it is reasonable to be pessimistic.
So, what to do? In recent months we have seen companies react to the uncertainty over the fate of the tariffs in three ways:
- Some rushed to ship as many products as possible before the potential effective date of the duty;
- Some granted—upfront—discounts equivalent to the threatened duty, in case it came into force;
- Some suspended orders, pending definitive news on the impact of the duties.
These are all valid options, but other effective tools for managing the uncertainty caused by the flurry of announcements, negotiations, and threats from the U.S. administration should not be forgotten: the risk of new duties being introduced, or existing ones being increased, can be managed in the contract by agreeing with the U.S. importer how any tariff change will affect the product.
The parties can stipulate, for example, that the increase will be split equally; or that the importer will bear it beyond a certain threshold; or that if the duty exceeds a certain level, the contracts may be terminated. You can find a deeper dive in this article.
The only certainty is that trade relations with the U.S. will stay unpredictable for a long time, and it’s vital to carefully manage the risk factors involved in selling products there. Right now, the focus is on tariffs and prices, and I encourage you to take this chance to thoroughly review existing agreements and assess whether—and how—other important points are addressed that could entail significant liabilities: we discuss them, very practically, in this book.
A dedicated notary account in Brazil is a legal mechanism that brings greater security, transparency, and reliability to financial transactions. Regulated under Law 8.935/1994 and Provision No. 197/2025, this service allows notaries to receive, manage, and release funds only after contractual conditions have been fulfilled. By ensuring segregation of assets, traceability, and impartial oversight, dedicated notary accounts provide an effective escrow-like solution for real estate deals, mergers and acquisitions, import/export operations, high-value asset purchases, and complex commercial contracts. This tool not only reduces legal risks and potential disputes but also strengthens trust between parties by guaranteeing that payments are safeguarded until obligations are met.
The legal basis can be found in Law 8.935/1994, § 1 of art. 7-A, which allows notaries to receive, deposit, and manage amounts related to legal transactions, with transactions subject to objectively verifiable facts/conditions. Provision No. 197, dated June 13, 2025, regulates, at the national level, the service of notarial accounts linked to Notary Public Offices.
Practical applications: among others, in the following transactions:
- Real estate: guarantee that the down payment and settlement amounts will be secured in a specific account. This mitigates the risk of misappropriation of funds and ensures that the money will be released only after all contractual conditions have been met.
- M&A: the linked notarial account creates a standardized escrow mechanism for the payment of price/holdbacks/earn-outs and conditional obligations.
- Purchase and Sale of High-Value Movable Property: the linked account can be used to guarantee payment. The buyer deposits the amount and the seller knows that the money is safe, being released only after the transfer of ownership and delivery of the goods.
- Import and Export: the transaction amount can be deposited with the notary and released to the exporter only after confirmation of delivery of the goods in the destination country, for example.
- Guarantee of Obligations: In any contract that provides for the payment of a sum of money as a guarantee, the notary account can be used to provide greater security to the parties.
- Supply, EPC/turnkey, and construction contracts: performance retentions, milestone acceptance (commissioning, as-built, issuance of ART/CREA), and payment against formal acceptance.
- Contractual joint ventures and commercial partnerships: advances conditional on licenses, authorizations, or competitive approval, where applicable.
Reduction of Legal Risks: The use of linked accounts reduces the chances of litigation related to lack of clarity about the origin and destination of funds. Companies can clearly demonstrate that payments were made and held by an impartial and secure institution.
Operational structure: limited to banking entities affiliated with the CNB, which must ensure the segregation of assets, traceability through audit trails, and proof of all transactions. The authorization of the delegate requires prior accreditation and electronic registration of the essential details of the transaction and its conditions in the CNB system, with access restricted to the parties and the notary.
Specific Purpose: amounts received as payment, guarantee, or advance payment as a result of notarial acts must be deposited in a bank account linked to the specific act and may only be moved for the purpose for which they are intended.
Transparency and Traceability: With the linked notarial account, it is possible to clearly track the financial flow of each transaction, which increases transparency for all parties and for supervisory bodies.
Verification of conditions and release. Once the objective conditions have been met, the notary authorizes the transfer to the recipients and files the proof of verification. In the event of a dispute between the parties, the notary suspends any movement, draws up a notarial deed, and advises on a consensual or judicial solution, without deciding on the effectiveness/termination of the transaction; if the transaction is frustrated and no solution is found, the procedure is terminated and the amounts are returned to the depositor, in accordance with the agreed clauses.
Confidentiality and access. In transactions with a confidentiality clause, the notary public maintains confidentiality and does not issue certificates regarding the content of the transaction; documents are accessible only for correctional purposes or by court order.
Remuneration and costs. The notary’s remuneration for the notarial account service is paid by the financial institution under the terms of the agreement, and the transfer of additional costs to the user is prohibited, without prejudice to fees for any related notarial acts.
Given the significance of the influencer market (over €21 billion in 2023), which now encompasses all sectors, and with a view for transparency and consumer protection, France, with the law of June 9, 2023, proposed the world’s first regulation governing the activities of influencers, with the objective of defining and regulating influencer activities on social media platforms.
However, influencers are subject to multiple obligations stemming from various sources, necessitating the utmost vigilance, both in drafting influence agreements (between influencers and agencies or between influencers and advertisers) and in the behaviour they must adopt on social media or online platforms. This vigilance is particularly heightened as existing regulations do not cover the core of influencers’ activities, especially their status and remuneration, which remain subject to legal ambiguity, posing risks to advertisers as regulatory authorities’ scrutiny intensifies.
Key points to remember
- Influencers’ activity is subject to numerous regulations, including the law of June 9, 2023.
- This law not only regulates the drafting of influence contracts but also the influencer’s behaviour to ensure greater transparency for consumers.
- Every influencer whose audience includes French users is affected by the provisions of the law of June 9, 2023, even if they are not physically present in French territory.
- Both the law of June 9, 2023, and the “Digital Services Act,” as well as the proposed law on “fast fashion,” foresee increasing accountability for various actors in the commercial influence sector, particularly influencers and online platforms.
- Despite a plethora of regulations, the status and remuneration of influencers remain unaddressed issues that require special attention from advertisers engaging with influencers.
The law of June 9, 2023, regulating influencer activity
The definition of influencer professions
The law of June 9, 2023, provides two essential definitions for influencer activities:
- Influencers are defined as ‘natural or legal persons who, for consideration, mobilize their notoriety with their audience to communicate to the public, electronically, content aimed at promoting, directly or indirectly, goods, services, or any cause, engaging in commercial influence activities electronically.’
- The activity of an influencer agent is defined as ‘that which consists of representing, for consideration,’ the influencer or a possible agent ‘with the aim of promoting, for consideration, goods, services, or any cause‘ (article 7) The influencer agent must take ‘necessary measures to ensure the defense of the interests of the persons they represent, to avoid situations of conflict of interest, and to ensure the compliance of their activity‘ with the law of June 9, 2023.
The obligations imposed on commercial messages created by the influencer
The law sets forth obligations that influencers must adhere to regarding their publications:
- Mandatory particulars: When creating content, this law imposes an obligation on influencers to provide information to consumers, aiming for transparency towards their audience. Thus, influencers are required to clearly, legibly, and identifiably indicate on the influencer’s image or video, regardless of its format and throughout the entire viewing duration (according to modalities to be defined by decree):
– The mention “advertisement” or “commercial collaboration.” Violating this obligation constitutes deceptive commercial practice punishable by two years’ imprisonment and a fine of €300,000 (Article 5 of the law of June 9, 2023).
– The mention of “altered images” (modification by image processing methods aimed at refining or thickening the silhouette or modifying the appearance of the face) or “virtual images” (images created by artificial intelligence). Failure to do so may result in a one-year prison sentence and a fine of €4,500 (Article 5 of the law of June 9, 2023).
- Prohibited or regulated promotions: This law reminds certain prohibitions, subject to criminal and administrative sanctions, stemming from French law on the direct or indirect promotion of certain categories of products and services, under penalty of criminal or administrative sanctions. This includes the promotion of products and services related to:
– health: surgery, aesthetic medicine, therapeutic prescriptions, and nicotine products;
– non-domestic animals, unless it concerns an establishment authorized to hold them;
– financial: contracts, financial products, and services;
– sports-related: subscriptions to sports advice or predictions;
– crypto assets: if not from registered actors or have not received approval from the AMF;
– gambling: their promotion prohibited for those under 18 years old and regulated by law;
– professional training: their promotion is not prohibited but regulated.
The accountability of influencer behaviour
The law also holds influencers accountable from the contracting of their relationships and when they act as sellers:
- Regulation of commercial influence agreements: This law imposes, subject to nullity, from a certain threshold of influencer remuneration (defined by decree), the formalization in writing of the agreement between the advertiser and the influencer, but also, if applicable, between the influencer’s agent, and the mandatory stipulation of certain clauses (remuneration, mission description, etc.).
- Influencer responsibility as a cyber seller: Influencers engaging in drop shipping (selling products without handling their delivery, done by the supplier) must provide the buyer with all information in French as required by Article L. 221-5 of the Consumer Code about the product, such as its availability and legality (i.e., guarantee that the product is not counterfeit), applicable product warranty, and supplier identity. Additionally, influencers must ensure the proper delivery and receipt of products and, in case of default, compensate the buyer. Influencers are also logically subject to obligations regarding deceptive commercial practices (for more information, the DGCCRF website explain the dropshipping).
The accountability of other actors in the commercial influence ecosystem
Joint and several liability is set by law, for the advertiser, influencer, or influencer’s agent for damages caused to third parties in the execution of the commercial influence contract, allowing the victim of the damage to act against the most solvent party.
Furthermore, the law introduces accountability for online platforms by partially incorporating the European Regulation 2022/2065 on digital services (known as the “DSA“) of October 19, 2022.
French regulation and international influencers
Influencers established outside the European Union (including also Switzerland and the EEA) who promote products or services to a French audience must obtain professional liability insurance from an insurer established within the EU. They must also designate a legal or natural person providing “a form of representation” (SIC) within the EU. This representative (whose regime is not very clear) is remunerated to represent the influencer before administrative and judicial authorities and to ensure the compliance of the influencer’s activity with law of June 9, 2023.
Furthermore, according to law of June 9, 2023, when the contract binding the influencer (or their agency) aims to implement a commercial influence activity electronically “targeting in particular an audience established in French territory” (SIC), this contract should be exclusively subject to French law (including the Consumer Code, the Intellectual Property Code, and the law of June 9, 2023). According to this law, the absence of such a stipulation would be sanctioned by the nullity of the contract. Law of June 9, 2023, seems to be established as an overriding mandatory law capable of setting aside the choice of a foreign law.
However, the legitimacy (what about compliance with the definition of overriding mandatory rules established by Regulation Rome I?) and effectiveness (what if the contract specifies a foreign law and a foreign jurisdiction?) of such a legal provision can be questioned, notably due to its vague and general wording. In fact, it should be the activity deployed by the “foreign” influencer to their community in France that should be apprehended by French overriding mandatory rules, rather than the content of the agreement concluded with the advertiser (which itself could also be foreign, by the way).
The other regulations governing the activity of influencers
The European regulations
The DSA further holds influencers accountable because, in addition to the reporting mechanism imposed on platforms to report illicit content (thus identifying a failing influencer), platforms must ensure (and will therefore shift this responsibility to the influencer) the identification of commercial communications and specific transparency obligations towards consumers.
The «soft law»
As early as 2015, the Advertising Regulatory Authority (“ARPP”) issued recommendations on best practices for digital advertising. Similarly, in March 2023, the French Ministry of Economy published a “code of conduct” for influencers and content creators. In 2023, the European Commission launched a legal information platform for influencers. Although non-binding, these rules, in addition to existing regulations, serve as guidelines for both influencers and content creators, as well as for judicial and administrative authorities.
The special status of child influencers
The law of October 19, 2020, aimed at regulating the commercial exploitation of children’s images on online platforms, notably opens up the possibility for child influencers to be recognized as salaried workers. However, this law only targeted video-sharing platforms. Article 2 of the law of June 9, 2023, extended the provisions regarding child influencer labor introduced by the 2020 law to all online platforms. Finally, a recent law aimed at ensuring respect for the image rights of children was published on February 19, 2024, introducing a principle of joint and several responsibility of both parents in protecting the minor’s image rights.
The status and remuneration of influencers: uncertainty persists
Despite the diversity of regulations applicable to influencers, none address their status and remuneration.
The status of the influencer
In the absence of regulations governing the status of influencers, a legal ambiguity persists regarding whether the influencer should be considered an independent contractor, an employee (as is partly the case for models or artists), or even as a brand representative (i.e. commercial agent), depending on the missions contractually entrusted to the influencer.
The nature of the contract and the applicable social security regime stem from the missions assigned to the influencer:
- In the case of an employment contract, the influencer will fall under the general regime for employees and assimilated persons, based on Articles L. 311-2 or 311-3 of the French Social Security Code.
- In the case of a service contract, the influencer will fall under the regime for self-employed workers.
The existence of a relationship of subordination between the advertiser and the influencer typically determines the qualification of an employment contract. Subordination is generally characterized when the employer gives orders and directives, has the power to control and sanction, and the influencer follows these directives. However, some activities are subject to a presumption of an employment contract; this is the case (at least in part) for artist contracts under Article L. 7121-3 of the French Labor Code and model contracts under Article L. 7123-2 of the French Labor Code.
The remuneration of the influencer
The influencer can be remunerated in cash (fixed or proportional) and/or in kind (for example: receiving a product from the brand, invitations to private or public events, coverage of travel expenses, etc.). The influencer’s remuneration must be specified in the influencer agreement and is directly impacted by the influencer’s status, as certain obligations (minimum wage, payment of social security contributions, etc.) apply in the case of an employment contract.
Furthermore, the remuneration (for the influencer’s services) must be distinguished from that of the transfer of their copyrights or image rights, which are subject to separate remuneration in exchange for the IP rights transferred.
The influencers… in the spotlight
The law of June 9, 2023, grants the French authority (i.e. the Consumer Affairs, Competition and Fraud Prevention Agency, “DGCCRF”) new injunction powers (with reinforced penalties). This comes in addition to the recent creation of a “commercial influence squad“, within the DGCCRF, tasked with monitoring social networks, and responding to reports received through Signal Conso. The law provides for fines and the possibility of blocking content.
As early as August 2023, the DGCCRF issued warnings to several influencers to comply with the new regulations on commercial influence and imposed on them the obligation to publicly disclose their conviction for non-compliance with the new provisions regarding transparency to consumers on their own social networks, a heavy penalty for actors whose activity relies on their popularity (DGCCRF investigation on the commercial practices of influencers).
On February 14, 2024, the European Commission and the national consumer protection authorities of 22 EU member states, Norway, and Iceland published the results of an analysis conducted on 570 influencers (the so-called “clean-up operation” of 2023 on influencers): only one in five influencers consistently presented their commercial content as advertising.
In response to environmental, ethical, and quality concerns related to “fast fashion,” a draft law aiming to ban advertising for fast fashion brands, including advertising done by influencers (Proposal for a law aiming to reduce the environmental impact of the textile industry), was adopted by the National Assembly on first reading on March 14, 2024.
Lastly, the law of June 9, 2023, has been criticized by the European Commission, which considers that the law would contravene certain principles provided by EU law, notably the principle of “country of origin,” according to which the company providing a service in other EU countries is exclusively subject to the law of its country of establishment (principle initially provided for by the E-commerce Directive of June 8, 2000, and included in the DSA). Some of its provisions, particularly those concerning the application of French law to foreign influencers, could therefore be subject to forthcoming – and welcome – modifications.
写信给 Roberto
The Supply Framework Agreement
2023年3月20日
- 契约
- 分销协议
- 国际贸易
Cross-border merger and acquisition (M&A) transactions are carefully structured. Lawyers negotiate risk allocation, manage regulatory exposure, and draft documents designed to withstand scrutiny across multiple jurisdictions. On paper, many of these transactions are sound.
And yet a surprising number of deals struggle to deliver their expected value.
When that happens, the problem isn’t in the paperwork. It’s in the people: Do they believe in the deal?
Belief starts with communication. If people don’t understand the deal, the documents won’t save it.
What Lawyers See vs. What Everyone Else Feels
For lawyers, a transaction is all about managing risk. Disclosure is deliberate. Regulatory exposure is controlled. Words matter, and for good reason.
For everyone else, it feels different.
Employees hear their company has been sold to a foreign buyer and start filling in the blanks. Customers wonder if priorities will change. Regulators look for patterns. Journalists hunt for a local angle.
These audiences are not reading the transaction documents. They are responding to fragments of information, hallway chatter, and media coverage.
The gap between legal precision and human interpretation is where many cross-border deals begin to drift.
Silence Is Not Neutral
Between announcement and closing, caution often turns into radio silence.
There are understandable reasons for this. Multiple disclosure regimes apply. Competition laws constrain what can be shared. Employment rules vary by jurisdiction. No one wants to say the wrong thing in the wrong place.
The problem? Silence rarely creates stability.
In the absence of credible information, people make up their own stories. These spread quickly inside the company and beyond. Once those narratives take hold, they’re hard to unwind, even when the official version finally comes out.
By the time integration teams are ready to engage, behaviour has already shifted. Trust has thinned. Momentum has slowed. Positions have hardened, and assumptions feel like facts.
One Deal, Many Interpretations
Cross-border transactions remove the safety net of shared assumptions.
What sounds confident in one country can come across as arrogant in another. An announcement that seems careful and responsible in one market may look evasive somewhere else. Expectations around consultation, transparency and leadership vary more than many deal teams expect.
That is why a single global message often falls flat.
The commercial logic needs to be consistent, but trust is built locally. That means understanding who people listen to in each market and what they are actually worried about.
When uncertainty sets in, people protect their turf. Roles get guarded. Silos harden. Decisions slow as teams focus on keeping influence instead of building something new.
When communication misses this, the impact is rarely dramatic at first. It shows up slowly, through disengagement, resistance and delay.
Employees Decide Earlier Than You Think
For employees, M&A feels personal long before it feels strategic.
They want to know how decisions will be made, whether local expertise still matters, and what the deal means for their job and future. They don’t expect certainty, but they do expect straight answers.
Vague reassurances can create more anxiety than simply acknowledging what is not yet known.
Managers sit at the centre of this dynamic. They are more trusted than corporate communications but often lack the tools to explain what the deal means in practice. When they lack clarity, uncertainty spreads quickly and becomes entrenched.
Change is rarely the problem. Employees’ fear of losing their role, influence, identity, or stability drives disengagement.
External Attention Changes the Equation
Cross-border deals attract public and political scrutiny that domestic transactions often do not.
Foreign ownership, jobs, and national interest are not abstract concerns. They shape how regulators act and how quickly questions escalate. Media expectations differ widely. In some places, restraint signals seriousness. In others, it looks suspicious.
Internal uncertainty has a way of becoming visible externally. Customers and partners often sense it before leadership does.
Why This Matters for Deal Counsel
For lawyers advising on cross-border M&A, communication is not a branding exercise. It is part of deal execution.
Poorly sequenced communication can complicate regulatory engagement. Inconsistent messaging can undermine management credibility. Prolonged silence can make integration harder than it needs to be.
Handled well, communication supports the legal strategy rather than undercutting it. It helps ensure that what can be said, and what cannot, aligns with how people actually receive and interpret information in different markets. It reduces friction instead of creating it.
The most effective deal teams treat communication as core infrastructure. They build it in early, tailor it to each market, and know that trust comes from what’s said, what’s acknowledged, and who delivers the message.
A simple test applies: If the people affected by the deal can’t explain, in their own words, why it makes sense, the communication hasn’t worked.
Cross-border M&A rarely fails because advisers lack skill. It fails because the human side gets addressed too late.
For lawyers navigating these deals, spotting communication risk early can mean the difference between a deal that just closes, and one that truly succeeds.
For more than 35 years as a commercial lawyer, I have seen how many of us, myself included, confused effective advice with immediate and exhaustive answers. Now I feel that the worlds of law and business are changing: it is not enough to know (more and more laws, more requirements, more contradictory rulings… and more noise), but rather to listen, accompany and facilitate decisions. And that is where acting also as an executive coach offers an extraordinarily useful framework.
Lawyers are expected to solve problems. Executive coaches, however, help others (within an ethical framework) to discover the answer for themselves. And this can be a source of enormous professional and client satisfaction. When clients are faced with a problem, they do not need a legal analysis, but rather clarity and perspective to decide… based on ‘their problem’, not ‘our solution’. Integrating executive coaching tools into our professional practice transforms legal conversations and advice into something more effective: a decision-making process in which we accompany the client from start to finish.
I can think of three areas where the legal advisor and the executive coach meet:
- The relationship with the client. Listen carefully before advising.
Plutarch said that ‘listening well is the basis of living well’. And sometimes the client is not so much looking for an answer as for clarity in order to make a decision. Listening beyond what they say (and what they don’t say) allows us to understand what concerns them. A question can open up more avenues than a lecture, which will most likely leave them cold. When we listen without rushing and without bias, we create a space for reflection that helps clients to organise, prioritise and make meaningful decisions. Meaningful… for them.
- Negotiation and mediation.
In these processes, we use coaching techniques to help defuse resistance and move from confrontation to understanding. The lawyer-coach facilitates the parties listening to each other and discovering what lies behind their demands. A negotiation can be unblocked when the other party is allowed to express themselves. Agreements cease to be mere transactions and become shared decisions, which are more stable and sustainable over time and less likely to be sources of conflict.
- Accompanying processes of change in the client and their organisation
The lawyer-coach can become not only the drafter of the agreement but also the facilitator of change. They help those involved to understand what is at stake and align decisions with their values and objectives by managing resistance. The solicitor ceases to be a mere ‘provider’ of services (who is often only called upon at the end of the process) and becomes a partner in reflection.
In short, I perceive that today we are required to practise differently: less technical and more human, less reactive and more transformative. Coaching techniques help: conscious listening, constructive feedback, clarity of purpose… they allow us to better manage conflict, stress and uncertainty. Coaching, of course, does not replace the law, but rather broadens it and provides it with tools. Now, artificial intelligence (much faster and potentially much more comprehensive and exhaustive) is displacing us from our habits. Perhaps this allows us to glimpse that lawyers should not only be experts in rules, but also facilitators of difficult conversations, someone capable of combining analysis and empathy, precision and presence. Someone who understands that their value lies in helping their clients avoid conflicts or resolve them in the way that best suits them. And that is where the lawyer-coach has a lot to contribute.
How real estate tokenisation works, what is the regulatory framework, and what rights investors actually acquire?
Real estate tokenisation, already present in Spain for several years, is no longer a futuristic promise but a tangible reality in the Spanish market. It represents more than just a technological innovation: it signifies a profound transformation in how we understand ownership, investment, and liquidity within the real estate sector — one of the most traditional and tightly regulated areas of our economy.
What is real estate tokenisation and how does it work?
In essence, to tokenise a property today means converting the economic rights associated with that asset into digital units that can circulate on blockchain-based platforms. Each token represents a fraction of those economic rights, allowing investors with more modest capital to access a market that has traditionally required substantial investments.
The role of smart contracts
Tokens operate through smart contracts that automatically execute the distribution of rental income or resale proceeds of that partial representation of the property, including any potential difference in value, eliminating intermediaries and providing transparency to the process. This automation is not merely cosmetic: it reduces operational costs, speeds up transactions, and potentially increases the liquidity of assets that have historically been among the least liquid in the market.
The legal reality: what is actually tokenised in Spain
It is essential to clarify from the outset a key point often blurred by marketing discourse: in practice, real estate tokenisation projects in Spain do not tokenise the property itself but rather the economic rights linked to a corporate vehicle (usually a special purpose vehicle, or SPV) that owns the property. Spanish law only allows the tokenisation of shares in joint-stock companies (sociedades anónimas) using distributed ledger technology; shares in limited liability companies (sociedades limitadas) cannot be tokenised. This means that if the SPV is a limited liability company, its shares cannot be directly tokenised — only other instruments such as participative loans or credit rights over income streams can be represented as tokens. Only if the SPV is incorporated as a joint-stock company is it legally possible to tokenise its shares.
What rights does a real estate token investor actually acquire?
An investor who acquires a token does not become a direct co-owner of the property. Depending on the structure chosen, they may become a shareholder in a tokenised joint-stock company that owns the property or a holder of economic rights derived from participative loans or other indirect forms of economic participation issued by the SPV that owns the asset. The distinction is crucial: if the company faces solvency issues or bankruptcy, the value of the token collapses with it, and the investor cannot exercise any direct real rights over the property.
Spanish law, rooted in centuries of land registry tradition, does not currently allow the transfer of real property rights through the mere transfer of tokens; a public deed and registration are required for the transfer to be effective against third parties. The SPV structure is therefore a compromise between technological possibilities and the demands of the current legal framework.
Regulatory framework for real estate tokenisation in Spain
CNMV authorisation and the 2023 Securities Market Law
The Spanish regulator has begun to establish a legal foundation for this technology to develop within a secure framework. In 2023, the Spanish National Securities Market Commission (CNMV) authorised Adventurees Capital PFP as the first crowdfunding platform to issue tokenised securities — a milestone in the convergence of crowdfunding and blockchain. This authorisation was accompanied by the approval of Law 6/2023 on the Securities Market, which expressly recognises the representation of transferable securities through distributed ledger technologies such as blockchain, granting them full legal validity.
The role of the Land Registry in the blockchain era
In parallel, the Spanish Association of Land Registrars is exploring how to integrate blockchain technology into the registry system, although it is important to clarify the real scope of these initiatives. Current projects focus mainly on complementary applications such as digital management of the Building Book or improved traceability and accessibility of registry information. They do not aim to replace the fundamental pillars of the system: execution of public deeds before a notary and registration of ownership, which remain absolutely mandatory for the transfer of real rights over property. Registrars are firm in their institutional stance: blockchain can complement and streamline document management, but it cannot replace the legal control exercised by the registrar or the protection of third parties offered by the Land Registry — both essential components of the Spanish legal system. This position reflects the current limitation of the model: tokens circulate on the blockchain representing positions in SPVs or economic rights over them, but the actual ownership of the property remains anchored in the traditional registry system, held by the corporate vehicle, and any transfer of that ownership must still follow the conventional legal process with all its guarantees.
European regulation: ECSPR, MiCA and the DLT Pilot Regime
Spain also benefits from a European regulatory framework that is positioning the EU as a global leader in digital asset regulation. The European Crowdfunding Service Providers Regulation (ECSPR) harmonises the rules for crowdfunding platforms, allowing an authorised platform in one Member State to operate across the EU through the so-called “European passport”. The MiCA Regulation, which came fully into force on 30 December 2024, broadly regulates crypto-asset markets, setting obligations for both issuers and service providers. The DLT Pilot Regime (EU Regulation 2022/858) allows market infrastructures based on distributed ledger technology to operate under certain temporary exemptions, creating a controlled testing environment to assess the potential of these technologies in financial markets.
The Spanish regulator’s approach could be described as cautiously supportive: innovation is encouraged, but strict compliance with anti-money laundering, customer identification, and disclosure obligations is required to protect investors. This is not technological laissez-faire, but rather an effort to integrate innovation within a solid framework of legal guarantees.
Legal challenges and risks of real estate tokenisation
The risks of the SPV structure
The legal challenges that remain are significant and deserve attention. The SPV structure, while legally viable, introduces an additional layer of complexity and risk that must be clearly communicated to investors. Unlike direct ownership — where the investor holds real rights over the property enforceable against third parties — in the current tokenised model, investors hold positions in indirect forms of economic participation (shares, participative loans, credit rights) linked to the company that owns the property. This has important implications for corporate liability, taxation, and insolvency protection.
The disconnect between the on-chain and off-chain worlds
It is also essential to understand that the connection between the “on-chain” world (where tokens circulate) and the “off-chain” world (where property rights are recorded) is neither direct nor automatic. Transferring a token does not in itself alter the Land Registry: ownership of the property remains with the SPV regardless of who holds the tokens, and only a duly notarised and registered deed can change that ownership. The exploratory projects of the Land Registrars aim to improve efficiency in information management but do not alter this fundamental principle. As in any emerging market, it is essential to prevent fraudulent schemes that promise unrealistic returns or market tokens without proper legal backing.
Practical implications for investors and legal practitioners
For legal practitioners, real estate tokenisation may require adapting contracts, corporate bylaws, and financing structures to an environment where rights circulate digitally and in a decentralised manner. For investors, it offers an opportunity to diversify portfolios with smaller capital contributions and greater liquidity potential than traditional real estate investment, provided they understand that they are not acquiring direct ownership of the property but rather a financial position linked to the corporate structure that owns it. And for the wider economy, it could invigorate a real estate market worth trillions of euros by facilitating the entry of retail capital previously excluded from such investments.
The future of real estate tokenisation in Spain
This is an evolution that combines law, technology, and finance in an inseparable way. It is essential to understand that tokenisation is not a passing trend but a tool that, when properly used and regulated, can transform access to one of society’s most valuable assets — property. However, this transformation currently operates through intermediate corporate structures and indirect forms of economic participation, not through direct ownership as commercial language sometimes suggests. It certainly does not imply an immediate revolution of Spain’s land registration system, whose fundamental guarantees remain intact.
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.
Since the General Data Protection Regulation (GDPR) took effect in 2018, the European Union (EU) has granted adequacy status to only a limited number of jurisdictions — those whose data protection regimes are deemed to provide an “essentially equivalent” level of protection to that of the EU. The current list includes Andorra, Argentina, Canada (under PIPEDA), Faroe Islands, Guernsey, Isle of Man, Israel, Japan, Jersey, New Zealand, South Korea, Switzerland, Uruguay, the United Kingdom, and the United States (limited to companies certified under the Data Privacy Framework).
As of 5 September 2025, Brazil is on the verge of joining this exclusive group. The European Commission has issued a draft adequacy decision concluding that the Brazilian General Data Protection Law (Lei Geral de Proteção de Dados Pessoais – LGPD), in conjunction with Brazil’s broader legal and constitutional framework, offers protections that are essentially equivalent to those found in the GDPR. While Brazil’s rules offer somewhat more flexibility in specific areas of data processing, the foundational principles and safeguards are well-aligned with EU standards.
Once finalized, the adequacy decision will authorize the free flow of personal data from the EU to Brazil without the need for additional contractual clauses or technical safeguards. Such a development is not just regulatory — it also answers a core political argument made by LGPD advocates since its inception: that the absence of a comprehensive data protection framework was undermining Brazil’s international competitiveness by limiting data flows and discouraging investment. For businesses, the EU decision may finally mean the removal of a significant layer of compliance complexity — a development especially welcome by small and medium-sized enterprises engaged in cross-border trade or service provision. The draft is currently under review by the European Data Protection Board (EDPB) and the Member States of the EU.
The Commission’s assessment highlights several key aspects of Brazil’s data protection landscape. It begins by noting that the Brazilian Constitution expressly guarantees the right to privacy and the protection of personal data — a notable distinction among non-EU jurisdictions. These protections are further supported by Brazil’s ratification of the American Convention on Human Rights and its recognition of the jurisdiction of the Inter-American Court of Human Rights, reinforcing a commitment to fundamental rights and democratic oversight.
The LGPD mirrors the GDPR in many critical respects and defines its territorial scope clearly. It applies to: (i) data processing carried out within Brazilian territory, (ii) the offering of goods or services to individuals in Brazil, and (iii) data collected in Brazil, even if subsequently processed abroad. This aligns well with the extraterritorial provisions of the GDPR. The definitions of personal data, sensitive data, controller, and processor are materially similar, as are the key principles governing processing — including lawfulness, purpose limitation, data minimization, accuracy, transparency, and security. The law expressly excludes anonymized data from its scope and establishes specific exemptions for journalistic activities, public security, and scientific research.
Another strength is Brazil’s institutional framework. The National Data Protection Authority (ANPD) was recently transformed into an autonomous regulatory agency, enhancing its independence and technical capacity. The ANPD holds both regulatory and enforcement powers: it can issue binding regulations, impose administrative sanctions, and publish authoritative guidance. To date, it has issued key guidelines on topics such as consent, legitimate interest, the role of the Data Protection Officer (DPO), and security incident reporting. Internationally, the ANPD is an active participant in global data protection dialogue — it is a member of the Global Privacy Assembly and an official observer to the Council of Europe’s Convention 108.
The LGPD’s approach to international data transfers is also structurally aligned with the GDPR. It requires appropriate safeguards such as standard contractual clauses, allows for future adequacy decisions under a regime comparable to Article 45 of the GDPR, and includes detailed provisions for onward transfers and transit data — that is, data merely passing through Brazil without further processing. The rights of data subjects are robust and familiar to European practitioners: access, rectification, erasure, portability, and withdrawal of consent are guaranteed. Lawful bases for processing are also aligned — including consent, legal obligations, contract execution, and legitimate interest. Notably, the LGPD requires a documented balancing test when relying on legitimate interest, bringing additional accountability to this flexible legal basis.
Security incidents involving personal data must be notified to both the ANPD and affected data subjects when there is a significant risk of harm. The standard notification deadline is 72 hours, and the required content aligns closely with Articles 33 and 34 of the GDPR. The ANPD may also order public disclosure of incidents or require remedial measures, depending on the nature and scope of the breach.
Importantly, this process is not one-sided. In parallel to the European Commission’s adequacy decision, the ANPD is conducting its own adequacy assessment of the EU and EEA data protection frameworks. This process is regulated by the Brazilian Resolution CD/ANPD No. 19/2024, which governs international data transfers. Once the technical and legal evaluation is complete, the ANPD’s Board of Directors will issue a formal decision. This reciprocal move reflects Brazil’s commitment to mutual recognition and regulatory symmetry — a positive signal for companies on both sides of the Atlantic.
In conclusion: If confirmed, Brazil’s adequacy status will simplify international operations, reduce compliance costs, and expand opportunities for data-driven business and legal cooperation. For European lawyers advising SMEs with interests in Latin America, this development is a strategic signal: Brazil is emerging not just as a growing market, but as a legally compatible and data-safe jurisdiction for international partnerships.
Remember the USA – EU agreement on 15% tariffs? I wrote that with a negotiator like Trump the game is never over (article here) and—after the recent interlude featuring a threat of 100% tariffs on pharmaceuticals—the U.S. government has announced the imposition of an overall 107% duty on Italian pasta, which could take effect on January 1, 2026.
Where this new duty comes from
The antidumping investigation was launched by the U.S. Department of Commerce at the request of certain competing American companies and is based on a 1996 antidumping order that allows for periodic reviews of imports of Italian pasta. The Department of Commerce conducts these checks annually to assess whether Italian producers are selling pasta at prices lower than the U.S. domestic market, a practice known as “dumping.”
Companies involved in the investigation
The Department of Commerce selected two sample companies for in-depth analysis, defined as “mandatory respondents”: La Molisana and Pastificio Lucio Garofalo. According to the official document published by the U.S. administration, for the period from July 1, 2023 to June 30, 2024, both companies allegedly sold their products below market prices, resulting in the imposition of a duty of 91.74%.
U.S. authorities justified this percentage by claiming the two companies did not provide complete or compliant information as requested by the Department and were therefore insufficiently cooperative during the investigation. What is very important is that, in addition to the two companies directly examined, the additional 91.74% duty is also applied to numerous other Italian producers not individually reviewed. This methodology, while formally permitted under U.S. law as an exception, is being applied without any direct verification of the other companies.
Next steps in the procedure
Italy’s Ministry of Foreign Affairs moved immediately, formally intervening in the proceeding as an “interested party” through the Italian Embassy in Washington. The Foreign Ministry is working in close coordination with the companies concerned and, in concert with the European Commission, to persuade the U.S. Department to revise the provisional duties.
The two companies involved (La Molisana and Garofalo) can submit documentation to contest the dumping allegations. However, if dumping is confirmed, the Department of Commerce will instruct Customs to apply antidumping duties on goods sold and entered into U.S. commerce.
The preliminary nature of this determination means there is still room to change the decision before it becomes final.
Possible effective date
The new super-duty of 91.74%, which will be added to the existing 15% tariff for a total of 107%, is scheduled to take effect on January 1, 2026. This date therefore represents a crucial deadline for all ongoing diplomatic and legal actions.
If confirmed, the economic impact would be significant: in 2024, Italian pasta exports to the United States reached a value of €671 million according to Coldiretti, accounting for nearly 17% of the sector’s total exports. A 107% duty would risk seriously undermining competitiveness in one of the most important markets for Italian agri-food products.
What to do between now and January 1, 2026?
At this stage, the entry into force of the new duty depends on the outcome of the ongoing procedure: given what has happened in recent months, and the political use the U.S. administration has made of tariffs—well beyond their technical function—it is reasonable to be pessimistic.
So, what to do? In recent months we have seen companies react to the uncertainty over the fate of the tariffs in three ways:
- Some rushed to ship as many products as possible before the potential effective date of the duty;
- Some granted—upfront—discounts equivalent to the threatened duty, in case it came into force;
- Some suspended orders, pending definitive news on the impact of the duties.
These are all valid options, but other effective tools for managing the uncertainty caused by the flurry of announcements, negotiations, and threats from the U.S. administration should not be forgotten: the risk of new duties being introduced, or existing ones being increased, can be managed in the contract by agreeing with the U.S. importer how any tariff change will affect the product.
The parties can stipulate, for example, that the increase will be split equally; or that the importer will bear it beyond a certain threshold; or that if the duty exceeds a certain level, the contracts may be terminated. You can find a deeper dive in this article.
The only certainty is that trade relations with the U.S. will stay unpredictable for a long time, and it’s vital to carefully manage the risk factors involved in selling products there. Right now, the focus is on tariffs and prices, and I encourage you to take this chance to thoroughly review existing agreements and assess whether—and how—other important points are addressed that could entail significant liabilities: we discuss them, very practically, in this book.
A dedicated notary account in Brazil is a legal mechanism that brings greater security, transparency, and reliability to financial transactions. Regulated under Law 8.935/1994 and Provision No. 197/2025, this service allows notaries to receive, manage, and release funds only after contractual conditions have been fulfilled. By ensuring segregation of assets, traceability, and impartial oversight, dedicated notary accounts provide an effective escrow-like solution for real estate deals, mergers and acquisitions, import/export operations, high-value asset purchases, and complex commercial contracts. This tool not only reduces legal risks and potential disputes but also strengthens trust between parties by guaranteeing that payments are safeguarded until obligations are met.
The legal basis can be found in Law 8.935/1994, § 1 of art. 7-A, which allows notaries to receive, deposit, and manage amounts related to legal transactions, with transactions subject to objectively verifiable facts/conditions. Provision No. 197, dated June 13, 2025, regulates, at the national level, the service of notarial accounts linked to Notary Public Offices.
Practical applications: among others, in the following transactions:
- Real estate: guarantee that the down payment and settlement amounts will be secured in a specific account. This mitigates the risk of misappropriation of funds and ensures that the money will be released only after all contractual conditions have been met.
- M&A: the linked notarial account creates a standardized escrow mechanism for the payment of price/holdbacks/earn-outs and conditional obligations.
- Purchase and Sale of High-Value Movable Property: the linked account can be used to guarantee payment. The buyer deposits the amount and the seller knows that the money is safe, being released only after the transfer of ownership and delivery of the goods.
- Import and Export: the transaction amount can be deposited with the notary and released to the exporter only after confirmation of delivery of the goods in the destination country, for example.
- Guarantee of Obligations: In any contract that provides for the payment of a sum of money as a guarantee, the notary account can be used to provide greater security to the parties.
- Supply, EPC/turnkey, and construction contracts: performance retentions, milestone acceptance (commissioning, as-built, issuance of ART/CREA), and payment against formal acceptance.
- Contractual joint ventures and commercial partnerships: advances conditional on licenses, authorizations, or competitive approval, where applicable.
Reduction of Legal Risks: The use of linked accounts reduces the chances of litigation related to lack of clarity about the origin and destination of funds. Companies can clearly demonstrate that payments were made and held by an impartial and secure institution.
Operational structure: limited to banking entities affiliated with the CNB, which must ensure the segregation of assets, traceability through audit trails, and proof of all transactions. The authorization of the delegate requires prior accreditation and electronic registration of the essential details of the transaction and its conditions in the CNB system, with access restricted to the parties and the notary.
Specific Purpose: amounts received as payment, guarantee, or advance payment as a result of notarial acts must be deposited in a bank account linked to the specific act and may only be moved for the purpose for which they are intended.
Transparency and Traceability: With the linked notarial account, it is possible to clearly track the financial flow of each transaction, which increases transparency for all parties and for supervisory bodies.
Verification of conditions and release. Once the objective conditions have been met, the notary authorizes the transfer to the recipients and files the proof of verification. In the event of a dispute between the parties, the notary suspends any movement, draws up a notarial deed, and advises on a consensual or judicial solution, without deciding on the effectiveness/termination of the transaction; if the transaction is frustrated and no solution is found, the procedure is terminated and the amounts are returned to the depositor, in accordance with the agreed clauses.
Confidentiality and access. In transactions with a confidentiality clause, the notary public maintains confidentiality and does not issue certificates regarding the content of the transaction; documents are accessible only for correctional purposes or by court order.
Remuneration and costs. The notary’s remuneration for the notarial account service is paid by the financial institution under the terms of the agreement, and the transfer of additional costs to the user is prohibited, without prejudice to fees for any related notarial acts.
Given the significance of the influencer market (over €21 billion in 2023), which now encompasses all sectors, and with a view for transparency and consumer protection, France, with the law of June 9, 2023, proposed the world’s first regulation governing the activities of influencers, with the objective of defining and regulating influencer activities on social media platforms.
However, influencers are subject to multiple obligations stemming from various sources, necessitating the utmost vigilance, both in drafting influence agreements (between influencers and agencies or between influencers and advertisers) and in the behaviour they must adopt on social media or online platforms. This vigilance is particularly heightened as existing regulations do not cover the core of influencers’ activities, especially their status and remuneration, which remain subject to legal ambiguity, posing risks to advertisers as regulatory authorities’ scrutiny intensifies.
Key points to remember
- Influencers’ activity is subject to numerous regulations, including the law of June 9, 2023.
- This law not only regulates the drafting of influence contracts but also the influencer’s behaviour to ensure greater transparency for consumers.
- Every influencer whose audience includes French users is affected by the provisions of the law of June 9, 2023, even if they are not physically present in French territory.
- Both the law of June 9, 2023, and the “Digital Services Act,” as well as the proposed law on “fast fashion,” foresee increasing accountability for various actors in the commercial influence sector, particularly influencers and online platforms.
- Despite a plethora of regulations, the status and remuneration of influencers remain unaddressed issues that require special attention from advertisers engaging with influencers.
The law of June 9, 2023, regulating influencer activity
The definition of influencer professions
The law of June 9, 2023, provides two essential definitions for influencer activities:
- Influencers are defined as ‘natural or legal persons who, for consideration, mobilize their notoriety with their audience to communicate to the public, electronically, content aimed at promoting, directly or indirectly, goods, services, or any cause, engaging in commercial influence activities electronically.’
- The activity of an influencer agent is defined as ‘that which consists of representing, for consideration,’ the influencer or a possible agent ‘with the aim of promoting, for consideration, goods, services, or any cause‘ (article 7) The influencer agent must take ‘necessary measures to ensure the defense of the interests of the persons they represent, to avoid situations of conflict of interest, and to ensure the compliance of their activity‘ with the law of June 9, 2023.
The obligations imposed on commercial messages created by the influencer
The law sets forth obligations that influencers must adhere to regarding their publications:
- Mandatory particulars: When creating content, this law imposes an obligation on influencers to provide information to consumers, aiming for transparency towards their audience. Thus, influencers are required to clearly, legibly, and identifiably indicate on the influencer’s image or video, regardless of its format and throughout the entire viewing duration (according to modalities to be defined by decree):
– The mention “advertisement” or “commercial collaboration.” Violating this obligation constitutes deceptive commercial practice punishable by two years’ imprisonment and a fine of €300,000 (Article 5 of the law of June 9, 2023).
– The mention of “altered images” (modification by image processing methods aimed at refining or thickening the silhouette or modifying the appearance of the face) or “virtual images” (images created by artificial intelligence). Failure to do so may result in a one-year prison sentence and a fine of €4,500 (Article 5 of the law of June 9, 2023).
- Prohibited or regulated promotions: This law reminds certain prohibitions, subject to criminal and administrative sanctions, stemming from French law on the direct or indirect promotion of certain categories of products and services, under penalty of criminal or administrative sanctions. This includes the promotion of products and services related to:
– health: surgery, aesthetic medicine, therapeutic prescriptions, and nicotine products;
– non-domestic animals, unless it concerns an establishment authorized to hold them;
– financial: contracts, financial products, and services;
– sports-related: subscriptions to sports advice or predictions;
– crypto assets: if not from registered actors or have not received approval from the AMF;
– gambling: their promotion prohibited for those under 18 years old and regulated by law;
– professional training: their promotion is not prohibited but regulated.
The accountability of influencer behaviour
The law also holds influencers accountable from the contracting of their relationships and when they act as sellers:
- Regulation of commercial influence agreements: This law imposes, subject to nullity, from a certain threshold of influencer remuneration (defined by decree), the formalization in writing of the agreement between the advertiser and the influencer, but also, if applicable, between the influencer’s agent, and the mandatory stipulation of certain clauses (remuneration, mission description, etc.).
- Influencer responsibility as a cyber seller: Influencers engaging in drop shipping (selling products without handling their delivery, done by the supplier) must provide the buyer with all information in French as required by Article L. 221-5 of the Consumer Code about the product, such as its availability and legality (i.e., guarantee that the product is not counterfeit), applicable product warranty, and supplier identity. Additionally, influencers must ensure the proper delivery and receipt of products and, in case of default, compensate the buyer. Influencers are also logically subject to obligations regarding deceptive commercial practices (for more information, the DGCCRF website explain the dropshipping).
The accountability of other actors in the commercial influence ecosystem
Joint and several liability is set by law, for the advertiser, influencer, or influencer’s agent for damages caused to third parties in the execution of the commercial influence contract, allowing the victim of the damage to act against the most solvent party.
Furthermore, the law introduces accountability for online platforms by partially incorporating the European Regulation 2022/2065 on digital services (known as the “DSA“) of October 19, 2022.
French regulation and international influencers
Influencers established outside the European Union (including also Switzerland and the EEA) who promote products or services to a French audience must obtain professional liability insurance from an insurer established within the EU. They must also designate a legal or natural person providing “a form of representation” (SIC) within the EU. This representative (whose regime is not very clear) is remunerated to represent the influencer before administrative and judicial authorities and to ensure the compliance of the influencer’s activity with law of June 9, 2023.
Furthermore, according to law of June 9, 2023, when the contract binding the influencer (or their agency) aims to implement a commercial influence activity electronically “targeting in particular an audience established in French territory” (SIC), this contract should be exclusively subject to French law (including the Consumer Code, the Intellectual Property Code, and the law of June 9, 2023). According to this law, the absence of such a stipulation would be sanctioned by the nullity of the contract. Law of June 9, 2023, seems to be established as an overriding mandatory law capable of setting aside the choice of a foreign law.
However, the legitimacy (what about compliance with the definition of overriding mandatory rules established by Regulation Rome I?) and effectiveness (what if the contract specifies a foreign law and a foreign jurisdiction?) of such a legal provision can be questioned, notably due to its vague and general wording. In fact, it should be the activity deployed by the “foreign” influencer to their community in France that should be apprehended by French overriding mandatory rules, rather than the content of the agreement concluded with the advertiser (which itself could also be foreign, by the way).
The other regulations governing the activity of influencers
The European regulations
The DSA further holds influencers accountable because, in addition to the reporting mechanism imposed on platforms to report illicit content (thus identifying a failing influencer), platforms must ensure (and will therefore shift this responsibility to the influencer) the identification of commercial communications and specific transparency obligations towards consumers.
The «soft law»
As early as 2015, the Advertising Regulatory Authority (“ARPP”) issued recommendations on best practices for digital advertising. Similarly, in March 2023, the French Ministry of Economy published a “code of conduct” for influencers and content creators. In 2023, the European Commission launched a legal information platform for influencers. Although non-binding, these rules, in addition to existing regulations, serve as guidelines for both influencers and content creators, as well as for judicial and administrative authorities.
The special status of child influencers
The law of October 19, 2020, aimed at regulating the commercial exploitation of children’s images on online platforms, notably opens up the possibility for child influencers to be recognized as salaried workers. However, this law only targeted video-sharing platforms. Article 2 of the law of June 9, 2023, extended the provisions regarding child influencer labor introduced by the 2020 law to all online platforms. Finally, a recent law aimed at ensuring respect for the image rights of children was published on February 19, 2024, introducing a principle of joint and several responsibility of both parents in protecting the minor’s image rights.
The status and remuneration of influencers: uncertainty persists
Despite the diversity of regulations applicable to influencers, none address their status and remuneration.
The status of the influencer
In the absence of regulations governing the status of influencers, a legal ambiguity persists regarding whether the influencer should be considered an independent contractor, an employee (as is partly the case for models or artists), or even as a brand representative (i.e. commercial agent), depending on the missions contractually entrusted to the influencer.
The nature of the contract and the applicable social security regime stem from the missions assigned to the influencer:
- In the case of an employment contract, the influencer will fall under the general regime for employees and assimilated persons, based on Articles L. 311-2 or 311-3 of the French Social Security Code.
- In the case of a service contract, the influencer will fall under the regime for self-employed workers.
The existence of a relationship of subordination between the advertiser and the influencer typically determines the qualification of an employment contract. Subordination is generally characterized when the employer gives orders and directives, has the power to control and sanction, and the influencer follows these directives. However, some activities are subject to a presumption of an employment contract; this is the case (at least in part) for artist contracts under Article L. 7121-3 of the French Labor Code and model contracts under Article L. 7123-2 of the French Labor Code.
The remuneration of the influencer
The influencer can be remunerated in cash (fixed or proportional) and/or in kind (for example: receiving a product from the brand, invitations to private or public events, coverage of travel expenses, etc.). The influencer’s remuneration must be specified in the influencer agreement and is directly impacted by the influencer’s status, as certain obligations (minimum wage, payment of social security contributions, etc.) apply in the case of an employment contract.
Furthermore, the remuneration (for the influencer’s services) must be distinguished from that of the transfer of their copyrights or image rights, which are subject to separate remuneration in exchange for the IP rights transferred.
The influencers… in the spotlight
The law of June 9, 2023, grants the French authority (i.e. the Consumer Affairs, Competition and Fraud Prevention Agency, “DGCCRF”) new injunction powers (with reinforced penalties). This comes in addition to the recent creation of a “commercial influence squad“, within the DGCCRF, tasked with monitoring social networks, and responding to reports received through Signal Conso. The law provides for fines and the possibility of blocking content.
As early as August 2023, the DGCCRF issued warnings to several influencers to comply with the new regulations on commercial influence and imposed on them the obligation to publicly disclose their conviction for non-compliance with the new provisions regarding transparency to consumers on their own social networks, a heavy penalty for actors whose activity relies on their popularity (DGCCRF investigation on the commercial practices of influencers).
On February 14, 2024, the European Commission and the national consumer protection authorities of 22 EU member states, Norway, and Iceland published the results of an analysis conducted on 570 influencers (the so-called “clean-up operation” of 2023 on influencers): only one in five influencers consistently presented their commercial content as advertising.
In response to environmental, ethical, and quality concerns related to “fast fashion,” a draft law aiming to ban advertising for fast fashion brands, including advertising done by influencers (Proposal for a law aiming to reduce the environmental impact of the textile industry), was adopted by the National Assembly on first reading on March 14, 2024.
Lastly, the law of June 9, 2023, has been criticized by the European Commission, which considers that the law would contravene certain principles provided by EU law, notably the principle of “country of origin,” according to which the company providing a service in other EU countries is exclusively subject to the law of its country of establishment (principle initially provided for by the E-commerce Directive of June 8, 2000, and included in the DSA). Some of its provisions, particularly those concerning the application of French law to foreign influencers, could therefore be subject to forthcoming – and welcome – modifications.
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