Spain – The effects of COVID-19 on Lease Agreements of Premises and Offices

2020年4月2日

  • 西班牙
  • 契约
  • 房地产

This week the Interim Injunction Judge of the Netherlands Commercial Court ruled in summary proceedings, following a video hearing, in a case on a EUR 169 million transaction where the plaintiff argued that the final transaction had been concluded and the defendant should proceed with the deal.

This in an – intended – transaction where the letter of intent stipulates that a EUR 30 million break fee is due when no final agreement is signed.

In addition to ruling on this question of construction of an agreement under Dutch law, the judge also had to rule on the break fee if no agreement was concluded and whether it should be amended or reduced because of the current Coronavirus / Covid-19 crisis.

English Language proceedings in a Dutch state court, the Netherlands Commercial Court (NCC)

The case is not just interesting because of the way contract formation is construed under Dutch law and application of concepts of force majeure, unforeseen circumstances and amendment of agreements under the concepts of reasonableness and fairness as well as mitigation of contractual penalties, but also interesting because it was ruled on by a judge of the English language chamber of the Netherlands Commercial Court (NCC).

This new (2019) Dutch state court offers a relatively fast and cost-effective alternative for international commercial litigation, and in particular arbitration, in a neutral jurisdiction with professional judges selected for both their experience in international disputes and their command of English.

The dispute regarding the construction of an M&A agreement under Dutch law in an international setting

The facts are straightforward. Parties (located in New York, USA and the Netherlands) dispute whether final agreement on the EUR 169 million transaction has been reached but do agree a break fee of €30 million in case of non-signature of the final agreement was agreed. However, in addition to claiming there is no final agreement, the defendant also argues that the break fee – due when there is no final agreement – should be reduced or changed due to the coronavirus crisis.

As to contract formation it must be noted that Dutch law allows broad leeway on how to communicate what may or may not be an offer or acceptance. The standard is what a reasonable person in the same circumstances would have understood their communications to mean.  Here, the critical fact is that the defendant did not sign the so-called “Transaction Agreement”. The letter of intent’s binary mechanism (either execute and deliver the paperwork for the Transaction Agreement by the agreed date or pay a EUR 30 million fee) may not have been an absolute requirement for contract formation (under Dutch law) but has significant evidentiary weight. In M&A practice – also under Dutch law – with which these parties are thoroughly familiar with, this sets a very high bar for  concluding a contract was agreed other than by explicit written agreement. So, parties may generally comfortably rely on what they have agreed on in writing with the assistance of their advisors.

The communications relied on by claimant in this case did not clear the very high bar to assume that despite the mechanism of the letter of intent and the lack of a signed Transaction Agreement there still was a binding agreement. In particular attributing the other party’s advisers’ statements and/or conduct to the contracting party they represent did not work for the claimant in this case as per the verdict nothing suggested that the advisers would be handling everything, including entering into the agreement.

Court order for actual performance of a – deemed – agreement on an M&A deal?

The Interim Injunction Judge finds that there is not a sufficient likelihood of success on the merits so as to justify an interim measure ordering the defendant to actually perform its obligations under the disputed Transaction Agreement (payment of EUR 169 million and take the claimant’s 50% stake in an equestrian show-jumping business).

Enforcement of the break fee despite “Coronavirus”?

Failing the conclusion of an agreement, there was still another question to answer as the letter of intent mechanism re the break fee as such was not disputed. Should the Court enforce the full EUR 30 million fee in the current COVID-19 circumstances? Or should the fee’s effects be modified, mitigated or reduced in some way, or  the fee agreement should even be dissolved?

Unforeseen circumstances, reasonableness and fairness

The Interim Injunction Judge rules that the coronavirus crisis may be an unforeseen circumstance, but it is not of such a nature that, according to standards of reasonableness and fairness, the plaintiff cannot expect the break fee obligation to remain unchanged. The purpose of the break fee is to encourage parties to enter into the transaction and attribute / share risks between them. As such the fee limits the exposure of the parties. Payment of the fee is a quick way out of the obligation to pay the purchase price of EUR 169 million and the risks of keeping the target company financially afloat. If financially the coronavirus crisis turns out less disastrous than expected, the fee of EUR 30 million may seem high, but that is what the parties already considered reasonable when they waived their right to invoke the unreasonableness of the fee. The claim for payment of the EUR 30 million break fee is therefore upheld by the Interim Injunction Judge.

Applicable law and the actual practice of it by the courts

The relevant three articles are in this case articles 6:94, 6:248 and 6:258 of the Dutch Civil Code. They relate to the mitigation of contractual penalties, unforeseen circumstances and amendment of the agreement under the tenets of reasonableness and fairness. Under Dutch law the courts must with all three exercise caution. Contracts must generally be enforced as agreed. The parties’ autonomy is deemed paramount and the courts’ attitude is deferential. All three articles use language stating, essentially, that interference by the courts in the contract’s operation is allowed only to avoid an “unacceptable” impact, as assessed under standards of reasonableness and fairness.

There is at this moment of course no well- established case law on COVID-19. However, commentators have provided guidance that is very helpful to think through the issues. Recently a “share the pain” approach has been advocated by a renowned law Professor, Tjittes, who focuses on preserving the parties’ contractual equilibrium in the current circumstances. This is, in the Court’s analysis, the right way to look at the agreement here. There is no evidence in the record suggesting that the parties contemplated or discussed the full and exceptional impact of the COVID-19 crisis. The crisis may or may not be unprovided for.  However, the court rules in the current case there is no need to rule on this issue. Even if the crisis is unprovided for, there is no support in the record for the proposition that the crisis makes it unacceptable for the claimant to demand strict performance by the defendant. The reasons are straightforward.

The break fee allocates risk and expresses commitment and caps exposure. The harm to the business may be substantial and structural, or it may be short-term and minimal. Either way, the best “share the pain” solution, to preserve the contractual equilibrium in the agreement, is for the defendant to pay the fee as written in the letter of intent. This allocates a defined risk to one party, and actual or potential risks to the other party. Reducing the break fee in any business downturn, the fee’s express purpose – comfort and confidence to get the deal done – would not be accomplished and be derived in precisely the circumstances in which it should be robust. As a result, the Court therefore orders to pay the full EUR 30 million fee. So the break fee stipulation works under the circumstances without mitigation because of the Corona outbreak.

The Netherlands Commercial Court, continued

As already indicated above, the case is interesting because the verdict has been rendered by a Dutch state court in English and the proceedings where also in English. Not because of a special privilege granted in a specific case but based on an agreement between parties with a proper choice of forum clause for this court. In addition to the benefit to of having an English forum without mandatorily relying on either arbitration or choosing an anglophone court, it also has the benefit of it being a state court with the application of the regular Dutch civil procedure law, which is well known by it’s practitioners and reduces the risk of surprises of a procedural nature.  As it is as such also a “normal” state court, there is the right to appeal and particularly effective under Dutch law access to expedited proceeding as was also the case in the example referred to above. This means a regular procedure with full application of all evidentiary rules may still follow, overturning or confirming this preliminary verdict in summary proceedings.

Novel technology in proceedings

Another first or at least a novel application is that all submissions were made in eNCC, a document upload procedure for the NCC. Where the introduction of electronic communication and litigation in the Dutch court system has failed spectacularly, the innovations are now all following in quick order and quite effective. As a consequence of the Coronavirus outbreak several steps have been quickly tried in practice and thereafter formally set up. At present this – finally – includes a secure email-correspondence system between attorneys and the courts.

And, also by special order of the Court in this present case, given the current COVID-19 restrictions the matter was dealt with at a public videoconference hearing on 22 April 2020 and the case was set for judgment on 29 April 2020 and published on 30 April 2020.

Even though it is a novel application, it is highly likely that similar arrangements will continue even after expiry of current emergency measures. In several Dutch courts videoconference hearings are applied on a voluntary basis and is expected that the arrangements will be formalized.

Eligibility of cases for the Netherlands Commercial Court

Of more general interest are the requirements for matters that may be submitted to NCC:

  • the Amsterdam District Court or Amsterdam Court of Appeal has jurisdiction
  • the parties have expressly agreed in writing that proceedings will be in English before the NCC (the ‘NCC agreement’)
  • the action is a civil or commercial matter within the parties’ autonomy
  • the matter concerns an international dispute.

The NCC agreement can be recorded in a clause, either before or after the dispute arises. The Court even recommends specific wording:

“All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”).”

The phrase “to the exclusion of the jurisdiction of any other courts” is included in light of the Hague Convention on Choice of Court Agreements. It is not mandatory to include it of course and parties may decide not to exclude the jurisdiction of other courts or make other arrangements they consider appropriate. The only requirement being that such arrangements comply with the rules of jurisdiction and contract. Please note that choice of court agreements are exclusive unless the parties have “expressly provided” or “agreed” otherwise (as per the Hague Convention and Recast Brussels I Regulation).

Parties in a pending case before another Dutch court or chamber may request that their case be referred to NCC District Court or NCC Court of Appeal. One of the requirements is to agree on a clause that takes the case to the NCC and makes English the language of the proceedings. The NCC recommends using this language:

We hereby agree that all disputes in connection with the case [name parties], which is currently pending at the *** District Court (case number ***), will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or ”NCC District Court). Any action for interim measures, including protective measures, available under Dutch law will be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCC Court of Appeal”).

To request a referral, a motion must be made before the other chamber or court where the action is pending, stating the request and contesting jurisdiction (if the case is not in Amsterdam) on the basis of a choice-of-court agreement (see before).

Additional arrangements in the proceedings before the Netherlands Commercial Court

Before or during the proceedings, parties can also agree special arrangements in a customized NCC clause or in another appropriate manner. Such arrangements may include matters such as the following:

  • the law applicable to the substantive dispute
  • the appointment of a court reporter for preparing records of hearings and the costs of preparing those records
  • an agreement on evidence that departs from the general rules
  • the disclosure of confidential documents
  • the submission of a written witness statement prior to the witness examination
  • the manner of taking witness testimony
  • the costs of the proceedings.

Visiting lawyers and typical course of the procedure

All acts of process are in principle carried out by a member of the Dutch Bar. Member of the Bar in an EU or EEA Member State or Switzerland may work in accordance with Article 16e of the Advocates Act (in conjunction with a member of the Dutch Bar). Other visiting lawyers may be allowed to speak at any hearing.

The proceedings will typically follow the below steps:

  • Submitting the initiating document by the plaintiff (summons or request as per Dutch law)
  • Assigned to three judges and a senior law clerk.
  • The defendant submits its defence statement.
  • Case management conference or motion hearing (e.g. also in respect of preliminary issues such as competence, applicable law etc.) where parties may present their arguments.
  • Judgment on motions: the court rules on the motions. Testimony, expert appointment, either at this stage or earlier or later.
  • The court may allow the parties to submit further written statements.
  • Hearing: the court interviews the parties and allows them to present their arguments. The court may enquire whether the dispute could be resolved amicably and, where appropriate, assist the parties in a settlement process. If appropriate, the court may discuss with the parties whether it would be advisable to submit part or all of the dispute to a mediator. At the end of the hearing, the court will discuss with the parties what the next steps should be.
  • Verdict: this may be a final judgment on the claims or an interim judgment ordering one or more parties to produce evidence, allowing the parties to submit written submissions on certain aspects of the case, appointing one or more experts or taking other steps.

Continuous updates, online resources Netherlands Commercial Court

As a final note the English language website of the Netherlands Commercial Court provides ample information on procedure and practical issues and is updated with a high frequence. Under current circumstance even at a higher pace. In particular for practitioners it’s recommended to regularly consult the website. https://www.rechtspraak.nl/English/NCC/Pages/default.aspx

This is a summary of the approved measures, which unfortunately for both tenants and landlords do not include any public aid or tax relief and just refer to a postponement in the payment of the rent.

Premises to which they are applied

Leased premises dedicated to activities different than residential: commercial, professional, industrial, cultural, teaching, amusement, healthcare, etc. They also apply to the lease of a whole industry (i.e. hotels, restaurants, bars, etc., which are the most usual type of businesses object of this deal).

Types of tenants

  • Individual entrepreneurs or self-employed persons who were registered before Social Security before the declaration of the state of alarm on March 14th, 2020
  • Small and medium companies, as defined by article 257.1 of the Capital Companies Act: those who fulfil during two consecutive fiscal years these figures: assets under € 4 million, turnover under € 8 million and average staff under 50 people

Types of landlords

In order to benefit from these measures, the landlord should be a housing public entity or company or a big owner, considering as such the individuals or companies who own more than 10 urban properties (excluding parking places and storage rooms) or a built surface over 1.500 sqm.

Measures approved

The payment of the rent is postponed without interest meanwhile the state of alarm is in force, but in any case, for a maximum period of four months. Once the state of alarm is overcome, and in any case in a maximum term of four months, the postponed rents should be paid along a maximum period of two years, or the duration of the lease agreement, should it be less than two years.

For landlords different to those mentioned above

The tenant could apply before the landlord for the postponement in the payment of the rent (but the landlord is not obliged to accept it), and the parties can use the guarantee that the tenant should mandatorily have provided at the beginning of any lease agreement (usually equal to two month’s rent, but could be more if agreed by the parties), in full or in part, in order to use it to pay the rent. The tenant will have to provide again the guarantee within one year’s term, or less should the lease agreement have a shorter duration.

Activities to which it is applied

Activities which have been suspended according to the Royal Decree that declared the state of alarm, dated march, 14ht, 2020, or according to the orders issued by the authorities delegated by such Royal Decree. This should be proved through a certificated issued by the tax authorities.

If the activity has not been directly suspended by the Royal Decree, the turnover during the month prior to the postponement should be less than 75% of the average monthly turnover during the same quarter last year. This should be proved through a responsible declaration by the tenant, and the landlord is authorised check the bookkeeping records.

Term to apply and procedure

The tenant should apply for these measures before the landlord within one month’s term from the publication of the Royal Decree-law, that is, from April 22nd, 2020, and the landlord (in case belongs to the groups mentioned in point c) is obliged to accept the tenant’s request, except if both parties have already agreed something different. The postponement would be applied to the following month.

As the state of alarm was declared more than one month ago (March 14th), landlords and tenants have already been reaching some agreements, for example 50% rent reduction during the state of alarm, and 50% rent postponement during the following 6 months. Tenants who do not reach an agreement with the landlord could face an eviction procedure, however court procedures are suspended during the state of alarm. We have also seen some abusive non-payment of rent by tenants.

When is becomes impossible to reach an agreement with the landlord, tenants have the legal remedy of claiming in Court for the application of the “rebus sic stantibus” principle, which was highly demanded during the 2008 financial crisis but very seldom applied by the Courts. This principle is aimed to re-balance the parties’ obligations when their situation had deeply changed because of unforeseen circumstances beyond their control. This principle is not included in the Spanish Civil Code, but the Supreme Court has accepted its application, in a very restricted way, in some occasions.

Summary – What can we learn in the time of Covid-19 that can be used in mediation? And what can we learn from mediation to be used in this crisis?

As you know, mediation is a way to solve conflicts in which the parties keep in their hands the possible solution. They do not need to come to a third party (judge or arbitrator) to impose the answer to them. Parties can imagine more freely what they need, and how to solve their differences.

Some of the elements and techniques mediators use in a mediation can also be used in and learnt from the current Time of Covid-19. And the current crisis also helps us to understand why they are so important in mediation.

Cooperation to get the solution is better than unilateral and imposed decisions

We usually tend to think that cooperation is a sign of weakness and that we recur to it only if we cannot impose or view or win our case. However, as in the time of Covid-19 where countries, scientists and people should fight together, when facing a conflict cooperation and going beyond your positions brings you the possibility to explore solutions that otherwise remain hidden.

« Now it is increasingly recognized that there are cooperative ways of negotiating our differences and that even if a “win-win” solution cannot be found, a wise agreement can still often be reached that is better for both sides than the alternative. […]

Three points about shared interests are worth remembering. First, shared interests lie latent in every negotiation. They may not be immediately obvious. Second, shared interests are opportunities, not godsends. Third, stressing your shared interests can make the negotiation smoother and more amicable. » [Fisher, Richard; Ury, William. “Getting to Yes: Negotiating an agreement without giving in”].

Listening is highly effective

In the time of Covid-19 we tend to accept better information that confirms our beliefs and we accept better indications that are in accordance with our preferences and beliefs. Nevertheless, also in this time, listening is of essential importance to understand the causes and solutions.

A mediator will always listen to the parties and will help them to do the same. Listening the other’s side arguments, its explanation of the facts, interests and needs, the reasons for its decisions… is also of utmost importance to find a joint solution.

«Whether you are a neutral third party (professional facilitator, friend, or manager) or one of the participants, as you listen to all the stories, you begin to sense the best solution. » [Levine, Stewart. “Getting to Resolution: Turning Conflict Into Collaboration.”]

A solution for me can also be a solution for you

In the time of Covid-19 it seems clear to all of us that a common solution is the only possible one. A vaccine will save the entire world. In mediation, the main benefit is to understand that, unlike a court judgement or arbitral award, a joint (not imposed) solution is possible and a benefit for me does not imply a damage or a lost for my opponent.

«A mediator works to understand each disputant’s perspective and to look for the value in it. In this role, you refrain from judging whose side is right or wrong. Instead, you try to see the merit in each side’s perspective. » [Shapiro, Daniel. “Building Agreement”].

We master the solution and we create the agreement in a safe environment

The solution to the current crisis does not only depend on the authorities and on the health professionals. A great part of the solution relies on everybody’s participation, washing our hands, respecting the social distance, staying safe at home avoiding contagion and the collapse of hospitals.

In court we leave the decision of the conflict in the hands of a third party –the judge, the arbitrator­–. In a mediation, on the contrary, the solution remains in our hands. We know what our interests are, we create our agreement. Our imagination is our ally in finding the solution together with the counterparty and the assistance and experience of the mediator who does not impose it but helps the parties to find it. Quite often, what parties could get in mediation goes far beyond what a judge would’ve been able to grant. And this in a confidential environment.

«The Sage is self-effacing and scanty of words. When his task is accomplished and things have been completed, all the people say, “We ourselves have achieved it!” » [Lao Tzu]

Emotions do matter

Good and bad emotions are inevitable. Particularly in periods of uncertainty, crisis and loose of control, we all face strong emotions. This is true in situations like this Covid-19 and in all conflicts, and not only in personal ones. Egos, envies, fears, anxieties… are also part of our day-to-day life, work and business, but they are rarely considered in courts when solving your conflicts. A mediator helps you to take them into account in a safe environment and as a part of the conflict itself.

«Solving problems seems easier than talking about emotions. The problem is that when feelings are at the heart of what’s going on, they are the business at hand and ignoring them is nearly impossible. » [Stone, Douglas. “Difficult Conversations: How to Discuss What Matters Most”].

Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19, even though it affects and produces effects in many different legal fields, does not include any reference to contracts for leases of real estate, or houses, premises or offices.

The purpose of this note is to analyze the effects of the situation of the State of Alarm regarding those leases of offices or premises that have been forced to close in application of the decree; those others that remain totally or partially open and in operation, although with a reduced or minimal activity, in principle are not subject to the conclusions reached below without prejudice to the fact that there are individualized cases to which, despite the fact that there is not a complete closure, reasonably and logically can be applied to them.

It is not excluded in any way that in the event of an extension of the validity of the State of Alarm, a regulation that affects the leasing contracts could be published, but for the moment this has not happened. If this were to happen, the content of said norm would apply.

Based on the principle of freedom of covenants enshrined in art. 1255 of the Spanish Civil Code, which allows the parties signing the contract to agree (i) what scenarios and situations should be considered as constituting cases of Force Majeure and Act of God and (ii) what the contractual consequences of such scenarios should be, the first exercise that must be done is to check if the contract includes a regulatory clause of Force Majeure and its effects; if so, such clause must be followed and its analysis is left out of this note.

In the absence of express regulation in the contract, the provisions of the Civil Code and specifically article 1105 would apply.

COVID-19 as Force Majeure

COVID-19 is an event that in principle meets the requirements of the Civil Code to be classified as an event of Force Majeure (art. 1105 Civil Code) since:

  • It is a foreign act and not attributable to the contractor who is the debtor of the benefit or obligation.
  • It is unpredictable, or if it were said to be “predictable”, it is certainly inevitable.
  • The event in question, the pandemic, must be a cause and result in the breach of the obligation, that is, there must be a causal link.

Therefore, fulfilling the three requirements, the first conclusion that we reach is that very foreseeably, the Spanish Courts will classify as “Force Majeure” the situation caused by COVID 19 when a judicial dispute is raised in which such matter is discussed between litigants. We will now analyze the consequences of this status.

Consequences of considering COVID-19 as an event of Force Majeure

Most of the doctrine and jurisprudence understand that the effects of classifying a scenario as a case of Force Majeure in principle are:

  • Total and definitive impossibility of complying; releasing the debtor from the fulfillment of the obligation.
  • Partial inability to comply; the debtor is released only in the part that it is impossible to fulfill, but still bound by the part that can be carried out.
  • Temporary inability to comply; the debtor is released from the responsibility for default as long as the exceptional situation persists.

Now, let us analyze how it would affect to considerate the epidemic as Force Majeure in relation to lease agreements for uses other than housing.

Regarding the payment of rent

The question to answer is if the classification of the current pandemic situation as a case of Force Majeure frees the tenant (whose premises have been forced to close by order of the government authority) from the obligation to pay the rent while said closing obligation persists, including in the concept of “release” different alternatives: total or partial cancellation and / or total or partial postponement.

We are meeting these days with a frequent reaction among some tenants, who, unilaterally have informed their landlords that considering COVID 19 an event of force majeure and having been forced to close the premises / office, they suspend the payment of the rent while said situation remains. They do not terminate the contract, they do not hand over the possession, they remain in it (the premises remain closed and not operational) but they suspend the payment (it is not clear whether suspending in this case means liberating himself from the payment of the rent or postponing its payment for when the Force Majeure scenario ends).

Arguments against liberation

As much as this attitude can be considered “understandable” from the perspective of the lessee, not from the point of view of the lessor, said consideration runs into an obstacle: the interpretation of the Force Majeure made by the Supreme Court regarding pecuniary payment obligations, according to the Civil Sentence of May 19, 2015:

“Not being able to consider, in the case of pecuniary debts, the subjective impossibility – insolvency – nor the objective or formal imposition, the doctrine concludes that it is not possible to imagine that if the impossibility is due to a fortuitous event it could have as effect the extinction of the obligation.

The exoneration of the debtor by fortuitous event is not absolute, it has exceptions, as provided for in article 1105 CC, and one of them, by application of the “genus nunquam perit” principle, would be in cases of obligations to deliver generic things.

In such circumstances, the pecuniary debtor is obliged to fulfill the main obligation, without the economic adversities freeing him from it, since what is owed is not something individualized that has perished, but something generic such as money”.

In conclusion: it does not seem that this jurisprudential criterion allows to defend that the fulfillment of the pecuniary obligations is released, extinguished or that its breach is justified in cases of Force Majeure, therefore the pecuniary debtor, in this case the lessee, in application of this criterion and due to the generic condition of the money, would be obliged to fulfill his main obligation not being freed from it by the unforeseen economic adversities on the basis of Force Majeure.

Arguments in favor of liberation: art. 1575 of the Civil Code

Having said the foregoing, reference should be made to an article of the Civil Code that, with certainty, will be profusely cited in the upcoming judicial conflicts.

The art. 1575, dealing with the leasing of rustic estates, recognizes the lessee’s right to the reduction of rent in the event of loss of more than half of the fruits (unless otherwise agreed) in “fortuitous, extraordinary and unforeseen cases … such as fire, war, plague, unusual flood, locust, earthquake or another equally unusual that the contractors have not been able to rationally foresee ”.

Is this article, foreseen for rustic leases, applicable to urban leases?

The art. 4.1 CC allows the analogical application of the rules when (i) they do not contemplate a specific assumption and (ii) they regulate a similar situation in which “identity of reason” may be appreciated.

The Sentence of the Supreme Court from January 15, 2019, that solved a conflict of a lease of a building used as hotel, in which the tenant had sought the reduction of the rent under the clause “rebus sic stantibus” by the crisis of 2008 and had alleged in his favor the application of art. 1575, established:

“The argumentation of the appealed judgment rejecting the claim to lower the agreed price is also not contrary to the legal criterion that follows from art. 1575 CC, which is the rule that allows the reduction of income in the leasing of productive assets that do not derive from risks of the business itself, it also requires that the loss of benefits originates from extraordinary and unforeseen fortuitous cases, something that by its own rarity could not have been foreseen by the parties, and that the loss of fruits is more than half of the fruits. In this particular case, none of these circumstances concur. The decrease in rents comes from market developments, the parties anticipated the possibility that in some years the profitability of the hotel would not be positive for the lessee and the losses alleged by NH in the operation of the Almería hotel are less than fifty per hundred, without taking into account that the overall result of his activity as manager of a hotel chain is, as the Audience considers proven in view of the consolidated management report, positive”.

The Supreme Court does not admit the application of art. 1575, but not because it is considered not applicable to non-rustic leases, but because the Court concludes that the requirements are not fulfilled since the 2008 crisis was neither unpredictable and because the lessee’s losses do not exceed 50%.

But, that interpretation of the Supreme Court together with the wording of art. 4.1 CC would support the claim of the lessee who has no incomes during the State of Alarm to demand a reduction in rental fee that fits the principle of proportionality.

Regarding early termination at the request of the lessee

However, we may find situations in which the lessee considering the current situation, decides to terminate the lease in advance, delivering the premises to the lessor.

They are cases in which the early termination of the contract is intended, without respecting (i) or the mandatory term (ii) or the previous notice, in both cases under the hypothesis that they are thus regulated in the contract.

In these scenarios, we understand that it may be defendable that, due to the situation of force majeure caused by COVID 19 and in application of art. 1105 of the CC, the lessee is exempt from the obligation:

  1. To respect the mandatory term of the lease
  2. To give prior notice to the lessor in case of early termination of the contract

In both cases, the contract would be terminated with the delivery of possession of the premises, without prejudice to having to respect the other obligations set forth in the contract for termination and delivery, provided that they are not equally affected by the situation of Force Majeure.

Our opinion is that, also in application of Article 1,105 of the CC, the thesis that the lessee would be released from any obligation to compensate damages to the lessor for said advance resolution or breach of the obligatory duration of the contract could be defendable before the Courts.

Conclusion

In conclusion, when the Courts decide on the effects of the current pandemic (that they will surely classify as Force Majeure), and how this will affect the obligations of leaseholders who have been forced to close their business, our opinion is the following:

  • Regarding the obligation to pay the rent, despite the contrary criterion of the sentence from May 19, 2015, we find defendable the analogue application of art. 1575 of the CC, based as well on the Supreme Court Sentence from January 15, 2019, in order to demand a proportional and equitable reduction of the rent.
  • Regarding the power of the leaseholder to terminate the contract in advance, in case the leaseholder hands the possession of the property to the lessor, we find defendable to exonerate the leaseholder from complying with the advance notice or mandatory term in case provided in the contract, without the obligation to indemnify the lessor for this reason.

Application of the Rebus Sic Stantibus clause (“RSS” clause)

We will analyze below if the RSS clause can be applicable to the case that we are studying and with which consequences.

Requirements of the RSS clause (Latin aphorism that means “things thus standing”)

The principle RSS operates as an intrinsic clause (that is, implicit, without the need to expressly agree by the parties) in the contractual relationship, which means that the stipulations established in a contract are so in view of the concurrent circumstances at the time, that is, “things thus standing”, so that any substantial and unforeseen alteration of the same could lead to the modification of the contractual content.

The RSS clause is not regulated in any article in our laws; It is a doctrinal construction that the jurisprudence has traditionally admitted (examples among many other Supreme Court Sentences from June 30, 2014, February 24, 2015, January 15, 2019, July 18, 2019), with great caution, only in certain cases, and requiring the following requirements:

  • That there has been an extraordinary alteration in the circumstances of the contract, at the time that it must be fulfilled, in relation to those present at the time the parties entered the contract.
  • To analyze whether an incident can determine the extraordinary alteration of the circumstances that gave meaning to the contract, we must a) contrast the scope of said alteration regarding the meaning or purpose of the contract and the commutativity or performance balance thereof; and b) the “normal risk” inherent or derived from the contract must be excluded.
  • That there has been an exorbitant disproportion, out of all calculation, between the obligations of the contracting parties, causing an imbalance between them.
  • That the above occurs because of radically unpredictable circumstances.
  • That there is no other remedy to overcome the situation.

Historically, our courts have been very reluctant to apply RSS, although since the economic crisis of 2008-2012 there has been a certain change in criteria and greater jurisprudential receptivity.

Consequences of the application of RSS

The doctrine establishes that the application of the RSS does not have in principle terminating effects on the contract, but only modifying effects, aimed at compensating the imbalance of obligations between the parties;  the doctrine establishes that this only applies to long-term contracts or successive contracts with deferred execution.

In application of the good faith principle, the reaction to an event of fortuitous event, force majeure or, in general, an event that generates a disproportion between the parties, such as that regulated by the RSS clause, should be the amendment of the contract to rebalance the obligations between the parties, and only in the event of material impossibility to comply with the obligations, the resolution of the obligation, in both cases without compensation for non-compliance.

For this reason, in relation to leasing contracts and in case of closure of the premises by mandatory mandate, we understand that the RSS clause may be:

  • alleged by the leaseholder to request or urge the lessor to downsize or postpone payment.
  • estimated by the judges, when these assumptions are debated before the Courts, when accepting such contractual amendment as equitable and legitimate in order to compensate the imbalance generated by the effects of COVID 19.

To summarize, the RSS clause can be a tool for the leaseholder that has had to close its premises during the State of Alarm, when negotiating with the lessor an amendment of the contract, trying to postpone the rent while the State of Alarm or negotiating a discount.

We should bear in mind:

  • That the RSS clause is unavoidably applicable on a casuistic basis, there are no generalizations and it will be necessary to take into account the effect caused by COVID 19 in each specific contractual relationship (Supreme Court Sentence from June 30, 2014 and February 24, 2015) and the real imbalance of benefits produced, and
  • That, as we have said, the Courts are generally reluctant to apply this clause, that they only apply in the absence of any other legal tool and in situations in which the maintenance of the contractual status quo reveals a manifest “injustice ”and a evident and resounding imbalance between the performance of the parties.

Does this mean that the leaseholder may impose on the lessor a modification of the economic conditions of the contract under the RSS clause (postponement or total or partial cancellation of the payment)?

We cannot assure this, what we think is that the application of this RSS clause should:

  • Justify a reasonable request from the leaseholder to temporarily change the conditions of the contract (postponement or cancellation, total or partially) that the lessor must reasonably meet.
  • In case of unreasonable refusal of the lessor, we recommend to document as much as possible leaseholder´s request and the possible negotiations or refusal, in order to substantiate a suspension of the payment of the rent, total or partial, during the State of Alarm aimed, not to extinguish his obligation, but to postpone it.

We will have to wait for the reaction of the Courts when they judge these conflicts, but if we dare to anticipate that it is quite possible that the judicial tendency will be to grant protection to the leaseholder with support in the RSS clause and the principle of business preservation, when it comes to validating certain modifying effects regarding the payment obligations of the leaseholder (total or partial remission of the rent payment during the pandemic crisis, postponement, or partial postponement).

In any case, it will be essential to prove, that the behavior of the leaseholder seeking protection in the RSS clause to amend the contract, has been strictly adjusted to the principle of good faith (Supreme Court Sentence from April 30, 2015).

It will also be important to analyze case by case why the displacement of the risk derived from the “exceptional and unforeseen event” from one contractor to the other is justified (Supreme Court Sentence from January 15, 2015) and could well be defended (Supreme Court Sentence from July 18, 2019) that both contracting parties must divide and assume the consequences between the two of them. The judicial decisions will vary in each specific case.

Conclusions and Recommendations

In conclusion, it seems that the leaseholder would have two instruments in order to try to successfully suspend or postpone the payment of the rents, the RSS clause and the principle of Force Majeure.

In our view, the replacement of the contractual balance altered by the exceptional event, may consist of either an extension of the lease payment terms or the application of a total, or partial cancellation of the rental payment obligation while it lasts the State of Alarm, but we understand that it will be defendable that the delay in the payment may not give rise neither to the termination of the contract under art. 1124 Cc nor to the requirement of damages art. 1105 Cc, therefore, will not empower the lessor to urge eviction.

Therefore, the steps to be followed in each case would be:

  • Carry out an examination of the contract to check whether force majeure and acts of God are regulated and if the current situation is in accordance with the contract provisions.
  • Should nothing be set forth at the contract, and in case the leaseholder has had to close the premises or office, notify the other party of this circumstance and try to negotiate a novation of the lease requesting:
    • Waiver of the payment obligation during the Alarm State.
    • The application of a discount on the payment obligations with both parties sharing the effects of the pandemic, in a proportion to be agreed.
    • Postponement of payment obligations until the premises or office can be reopened with a payment plan for the deferred debt.

If it is not possible to reach an agreement, it is advisable to try to maintain evidence that the parties have acted in good faith trying to reach a negotiated solution and at the extreme (from the leaseholder´s point of view) announce, without waiting to receive a communication or claim from the Lessor, the suspension of the rental fee payment until reopening of the premises/offices, justifying the same in the Alarm State.

《法国商业法》规定，贸易商在未给予充分书面通知的情况下终止书面合同或非正式商业关系(第442-1.1条)将被制裁。在过去的二十年中，这已成为商业关系或合同终止（全部或部分终止）时所有补偿行为（最高可达24个月的毛利率以及其他损害赔偿）的经常性法律依据。

因此，与法国公司签约的外国贸易商应尽量避开该规则的管辖范围 (第一部分)，如果不能，则应理解并控制其实施 (第二部分)。

简而言之

外国公司如何避免或控制与法国法律规定的“突然终止商业关系”有关的风险？

与法国公司做生意的外国公司应该这样做：

  • 与法国供应商或客户尽快达成书面（框架）协议，即使是非常简单的关系也是如此；
  • 规定一项有利于外国法院或仲裁以及外国适用法律的条款，而如果不能选择该条款，则只能服从法国法院和法律。

外国公司如何才能掌控法国法律规定的“突然终止商业关系”的风险?

与法国公司做生意的外国公司应该这样做：

  • 要知道，本条适用于几乎所有类型的商业关系或合同，无论是书面的还是非书面的，无论是定期的还是非定期的;
  • 检查其关系/合同是否期限足够且正常和重要，以及对方是否有合理理由相信该关系/合同会继续维持；
  • 给出终止或不续约（甚至是重大修改）的书面通知，其期限主要考虑到关系的持续时间，与合同通知的时限无关；
  • 谨慎地劝告当事方在遭遇不可抗力和严重过失的情况下，搁置“突然终止”；
  • 如果没有充分的通知，则预计赔偿金额为为每月平均毛利率与未获批准的事先通知的期限之积。

如何避免适用法国的“突然终止”规则?

在国际事务中，外国公司必须预见其关系是否将受到法国法律的管辖，并且在发生争议的情况下，是否将其关系提交到法国法院。

“突然终止合同”的法律适用范围是什么?

对于一个外国公司来说，要正确地掌握适用于“突然终止”的法国法律冲突法规则框架是相当困难的。巴黎上诉法院在2018年9月19日的裁决（RG 16/05579，DES / 娇韵诗）中隐含提及Granarolo欧盟裁决（07 14 16，N°C196 / 15），该裁决将合同资格扩展至大多数业务关系，以改善可预见性，来应对外国公司试图排除法国法律及其“突然终止”规则的行为。

突然终止书面合同或“默认合同关系”

根据关于合同适用法律的罗马一号法规 (EC No 593 / 2008，2008年6月17日)：

  • 如果当事各方选择了外国法律：选择外国适用法律的条款将是有效的，并将受到法国法官的尊重 (服从OMR，请参阅下文)，前提是当事各方选择的法律是明示或确定的。
  • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为它可能也是分销商/加盟商所在国的法律等，或是提供合同服务功能的当事方所在国家/地区的法律。

突然终止“非默认合同关系”

如果是非正式关系 (即偶尔下达订单)，法国法官将保留侵权行为资格，并将参考适用于非合同义务法律的《罗马二号条例》(第864/2007号，2007年7月11日)。

  • 如果当事各方选择了外国法律：法国法官应执行草拟的外国法选择条款，条件是该条款明确包含侵权案件。
  • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为这可能是损害发生的国家/地区的法律（无论是发生事件的地点还是造成间接后果的地点），是法国受害者遭受终止结果的总部所在地。

“突然终止合同”是法国的一项压倒一切的强制性规定吗?

法国法院的立场相当模糊且令人不满。 简而言之：巴黎商事法庭认为“突然终止”不是OMR，巴黎上诉法院（负责“突然终止”案件的唯一法国上诉法院）却支持OMR资格，而最高法院……对此事保持沉默。尽管罗马一号条例（或罗马二号）第9.1条缺乏严格的推理和理由，但很明显，巴黎上诉法院有司法意愿将“突然终止”归为OMR。 因此，如果向法国法院提出“突然终止”的要求，则该法国法院极有可能排除适用的外国法律，而将其替换为产生于第L 442-1. II条“突然终止”。

因此，外国公司确保“突然终止”不会妨碍合同的终止或停止续签的唯一可能性，不仅是选择一项适用的外国法律，而且是确保将争端提交外国法官或仲裁庭。

如何避免法国法院对“突然终止”索赔的管辖权?

“突然终止”索赔和欧盟内部共同承包商

欧洲法院的裁决(Granarolo, 2016年7月14日，NC196/15)区分了以下索赔:

  • 书面框架合同或默认合同关系 (仅当欧洲法院所列出的证据由国家法官确定时才存在，即相互承认的关系和承诺的限期，如排他性、特价或交货与付款条件、竞业禁止等)：根据布鲁塞尔一号重铸条例下的管辖权冲突规则，此类索赔具有合同性质；
  • 非正式关系——一种非默认的合同关系 (即不时下达的命令)：在布鲁塞尔一号重铸条例下这样的请求具有侵权性质。

（a）谁是“突然终止”书面合约或“默契合约关系”的法官?

  • 为了外国法院的利益，管辖权条款将由法国法院执行，即使它是一个不对称的条款 (最高法院，2015年10月7日，Ebizcuss.com / 苹果销售国际)。
  • 在缺乏法院条款选择的情况下，如果以“突然终止”为基础提起诉讼的法国索赔人是服务提供者，例如分销商，代理人等，则法国法院可能具有管辖权 (请参阅欧洲法院 Corman Collins案， 19 12 13，C-9 / 12和布鲁塞尔一号重铸条例第7.1.b.2条)。

（b）谁是“非默认合同关系”“突然终止”的法官？

  • 我们认为，法国法院可能会继续执行侵权案件中的管辖权条款，特别是明确包含侵权诉讼的条款 (最高法院，1°Ch.Civ.，2017年1月18日，n°15-26105，里维埃拉汽车/阿斯顿马丁拉贡达有限公司)。
  • 在缺乏法院条款选择权的情况下，法国法院将对“突然终止”索赔具有管辖权，所以由位于发生损害事件地点的法官（布鲁塞尔一号第7.3条）负责，而该地点是“突然终止”生效的地方……即如果法国公司是受害者，该地点就在法国。

“突然终止”索赔和非欧盟共同承包商

如果一名法国受害者基于非欧盟公司的“突然终止”向法国法院提出索赔，Granarolo解决方案将不在事实上适用。在非欧盟关系中，法国法官只能继续保留侵权资格。在这种情况下，法国法院可以根据损害事件发生的地点保留其管辖权。然而，即使是基于侵权的索赔，在法国也可以承认管辖权条款。

“突然终止”索赔和仲裁

制定一项临时条款或机构仲裁条款可能是规避法国法院管辖权的最安全解决方案。理想情况下，该条款将在法国境外确定仲裁庭的席位。根据仲裁员的胜任力原则，法国法院宣布其自身无能力仲裁，除非仲裁条款明显无效或明显不适用，无论合同或侵权理由如何 (特别参见巴黎上诉法院，2019年9月5日，n / 17/03703)。

结论：外国公司不应公开管辖权和管辖法律问题。他们必须协商出一个安全港湾，否则，被终止的法国受害人将可能有权向法国法官提出“突然终止”的要求（请参阅下面第2部分的内容）

如何掌握“突然终止”法律的规则?

在法国法律适用的情况下，外国公司将面临法国商业法典L442 -1.II条对“突然终止”的制裁。 作为一项初步说明，首先必须知道，“突然终止”责任的执行是通知时间太短的结果。 因此，该方案没有制定自动补偿规则。换句话说，一旦终止的发起人发出了合理的通知，基于该通知的责任就可以被免除。

“突然终止”的先决条件：已建立的商业关系

所有合同均受该法律制度的约束，法规中规定了特定终止通知的合同除外，例如商业代理合同和公路分包合同的货物运输。

首先，必须存在一种可以通过书面合同或事实上当事双方的行为所证明的关系。这种关系可以建立在一系列默认续签的合同或由多个订单实现的正常业务流程基础之上。

第二，这种关系必须具有既定的特征。没有法律定义，但是判例法年复一年地对这一概念进行了界定，判例法已经建立了一个客观标准和一个更主观的标准。

(a) 客观标准意味着双方之间有足够长期、经常和重要的关系。关系的持续时间是最重要的标准。这种关系必须是有规律的，也就是说，它不能被打断(太频繁或太长时间)。这种关系最终必须是有意义的，并且在数量或价值上代表双方之间的业务流。

(b) 主观测试主要侧重于受害人在基于事实层面上认为继续的合同/关系（例如投资要求，几年内的预算等）将走向破裂的合理信念。相反，正是基于对共同的未来缺乏合理信念的结果，即当终止方多次提出招标要求时，终止方可以证明其缺乏稳定的品格 (除非这是一个诡计)。

提前预计“突然终止”索赔

(a) 终止可以是全部或部分的

完全破裂是通过关系的完全终止来实现的，例如终止合同、停止买方发送订单或停止供应商记录订单。但是要处理的最复杂的情况是所谓的部分破裂，它是通过对部分影响关系但不会将其减少为零的部分进行修改而得出的 (例如：价格上涨或下跌，付款或交付条件的改变)。

(b) 终止必须以合理的事先书面通知为准

通知必须以书面形式通知。没有书面通知本身就是一种违约行为。通知必须清楚地反映一方当事人全部或部分断绝关系的意愿，并且必须清楚地表明这一意愿。双方必须区分正式违约通知函和随后发出的违约通知（如适用）。在通知期间内，双方必须完全遵守所有合同条件。

在2019年改革之前，法国法律没有明确规定应遵守的事先通知的期限。如果判例法规定了若干标准，则应当指出，最重要的标准是关系的持续时间。法官还考虑到受害人所占的营业额份额、领土排他性的存在与否、产品的性质和活动的范围、受害者进行投资的重要性（特别是对于所涉关系的投资），最后是经济依赖的状态。法官们发出通知的时间长短不一。对通知的评估是逐案进行的。即使是几乎对于一段关系中的一年，也可能需要一个月的通知时间（根据关系中的其他标准进行上下调整），很难给出一个黄金法则。2019年4月24日的法令根据第l442 -1. i条把合理到期的通知期限限制为18个月。但大部分诉讼仍存在不确定性，因为只有特别长寿或特别敏感的关系，才可能导致高于18个月的通知分配时间。

法官不受合同规定的合同通知书的约束。但是，如果违约方还违反了合同规定的终止条款和条件，则受害人可以在突然终止的侵权基础上，或违反合同义务的基础上，追究违约方的责任。

排除“突然终止合同”的情况

法律制度规定了两种情况，而判例法似乎还规定了其他情况。

(a) 两个法律例外分别是不可抗力（很少被法院神圣化）和遭受终止的受害者的过失，判例法补充说，这必须是对合同承诺或法律规定（如不尊重排他性、竞业禁止、保密或变更控制责任，或未按合同规定支付到期金额）的严重违反。

当然，法官们认为自己不受界定什么构成严重不当行为的终止条款的约束。在任何情况下，因严重不当行为而终止协议的一方必须在终止协议书中明确通知对方。最重要的是，严重的不当行为会导致通知的缺少，因此，如果终止方指控严重的不当行为，但给予通知，无论是哪种情况下，法官都可能会得出结论，认为该过失不够严重。

(b)  近年来，判例法增加了其他免责的案例。在这种情况下，破裂是由当事方以外的原因造成的，如经济危机，上游或下游自身客户或供应商的损失。

无论其期限是什么，法官们还排除了定期合同第一个期限结束的假设中的“突然终止”：合同的首次续签对合同破裂的受害者构成可预见的事件，这就排除了残暴的概念；但一旦合同至少续签了一次，法官随后就可以描述受害者对新的默认续签的合法信念。

“突然终止”的赔偿

法官只赔偿暴力行为本身的破坏性后果，但至少在第L442-1.II条的范围内，不赔偿违约行为本身的后果。

基本规则非常简单：必须确定应授予的通知的期限，从中减去实际授予的通知期限。该净通知时间乘以受害人的平均每月毛利率，或在更通常的情况下，是乘以可变成本的利润，不包括因不履行合同/关系而消失的成本。被告应毫不犹豫地索要完整的会计证据，尤其是确定（较低的）利率，甚至要求就这些会计要素提供司法专业知识。通常，平均每月利润的基数包括最近24或36个月。

通常，以平均保证金计算的补偿不包括任何其他补偿。但是，受害人可以证明其由于关系破裂的残酷性而遭受了其他损失。例如由于这种野蛮行为直接导致的被解雇或受害者最近进行的投资贬值。

在预测“突然终止”时的一些实用技巧

即使法律制度仍然模棱两可，判例法极其苛刻，无法发布强有力的指导方针，但在公司计划终止一段关系/合同时，以下是一些实用建议：

  • 如果定期合同可以默认续签，不续签通知必须在合同通知开始之前提前较长时间发出，以避免出现必须在不续签合同与不充分的通知之间作出选择或同意在新的期限内续签合同的情况;
  • 当商业团队过于激进地改变商业关系/合同的执行条件时，必须让他们意识到部分突然终止的风险；
  • 在某些情况下，发送一份带有“通知建议”的提前终止通知可能有帮助，以便尝试与另一方确认该通知；
  • 在某些关系中，根据产品线的性质，以不同的通知期限来通知关系的结束也是有用的；
  • 最后，最好的方法是缔结关系终止协议，确定通知的期限，并在必要时规定订单的逐步递减，这在和解协议的框架内是完整的，该协议最终将放弃任何索赔 ，包括“突然终止”。

在进入关系期限的最后阶段时，应考虑“突然终止”制度：必须仔细规划合同（或事实上的关系）终止的方式，以便掌控给对方造成损害和被起诉要求赔偿的风险。

QUICK SUMMARY: Contract negotiations do not take place in a legal vacuum. A party who negotiates contrary to the principle of good faith and then breaks off negotiations may become liable to the other party. However, the requirements for such liability are high and the enforcement of damage claims is cumbersome. At the end of the post I will share some practical tips for contract negotiations in Switzerland.

Under Swiss law, the principle of freedom of contract is of fundamental importance. It follows from the freedom of contract that, in principle, everyone is free to enter into contract negotiations and to terminate them again without incurring any liability. A termination of contract negotiations does not have to be justified either.

However, the freedom of contract is limited by the obligation to act in good faith (cf. article 2 para. 1 of the Swiss Civil Code), which is of equal fundamental importance. From the moment when parties enter into contract negotiations, they are in a special legal relationship with each other. That pre-contractual relationship involves certain reciprocal obligations. In particular, the parties must negotiate in a serious manner and in accordance with their actual intentions.

Negotiating parties must not stir up the hope of the other party, contrary to their actual intentions, that a contract will actually be concluded. Put differently, a party’s willingness to conclude a contract must not be expressed more strongly than it actually is. If a party realizes that the other party wrongly beliefs that a contract would certainly be concluded, such illusion should be dispelled in due course.

A negotiating party that terminates contract negotiations in violation of these principles, whether maliciously or negligently, may become liable to the other party based on the culpa in contrahendo doctrine. However, such liability exists in exceptional cases only.

  • The fact that contract negotiations took a long time is not sufficient for incurring such liability. The duration of negotiations is, in itself, not decisive.
  • It is not possible to derive liability from pre-existing contractual relationships between the negotiation parties, as for example in cases where parties negotiate a “mere” prolongation of an existing agreement. The decisive factor is not whether parties were already contractually bound before, but only whether the party that terminated the contract negotiations made the other party believe that a new agreement would certainly be concluded.
  • It is not decisive whether the party who terminates contract negotiations knows that the other party has already made costly investments in view of the prospective contract. In principle, anyone who makes investments already prior to the actual conclusion of a contract does so at its own risk. Even where a party to contract negotiations knows that the other party has already made (substantial) investments in the prospective agreement, a termination of the contract negotiations will, in itself, not be considered as an act of bad faith.

What does a liability for breaking off negotiations include?

If a party violates the aforementioned pre-contractual obligations, the other party may be entitled to compensation for the so-called negative interest. This means that the other party must be put in the position it would have been if the negotiations had not taken place. Damages may include, e.g., expenses in connection with the negotiation of the contract (travel costs, legal fees etc.), but also a loss of income in cases where a party was not able to do business with third parties because of the contract negotiations. However, the other party has no right to be treated as if the contract had been concluded (so-called positive interest).

Having said that, it must be kept in mind that the requirements set by Swiss court for the substantiation of damages are rather high, so that the enforcement of a liability for breaking off negotiations will often be a cumbersome process. Therefore pursuing damage claims with relatively low amounts in dispute might often require a disproportionate effort.

Practical tips – Do’s and don’ts when negotiating contracts

  • Do not overstate your willingness to conclude a contract. Be frank with your counterparty. Make it clear from the beginning of the negotiations what clauses are important to you.
  • Do not tell the other party that you are willing to sign a contract, if you still have doubts or you are even unwilling to do so. Confirm that you will sign only if you are convinced to do so.
  • Do not allow someone else (e.g., a representative, employee, branch office etc.) to negotiate on your behalf if you are not willing to enter into an agreement anyway. Keep an eye on how the negotiations are going on and intervene if necessary.
  • Do not make costly investments before a legally binding agreement is concluded. If, for time or other reasons, such investments are necessary already before the conclusion of an agreement, insist on the conclusion of an interim contract governing such investments for the event that the envisaged agreement is not concluded finally.

In 2020, an important revision of the Swiss statute of limitations enters into force. The new law provides for longer limitation periods in cases of personal injury and extends the relative limitation periods in tort and unjust enrichment law from one to three years.

Background of the revision

In June 2018, the Swiss parliament adopted an amendment to the Swiss Code of Obligations (“CO”) pertaining to a revision of the statute of limitations. In November 2018, the Swiss government decided that the revised statute of limitations shall enter into force on 1 January 2020.

The revision was significantly influenced by asbestos cases. Under the current law, damage claims of asbestos victims were time-barred in some cases even before asbestos-related diseases could be diagnosed. In March 2014, the European Court of Human Rights held in Howald Moor and others v. Switzerland that the Swiss statute of limitations amounts in such cases to a violation of article 6 paragraph 1 of the European Convention on Human Rights (right of access to a court).

Having said that, the revision does not only concern cases of personal injury, but also includes numerous other important changes as described in the following.

Key changes regarding limitation periods

A. Tort law

In tort law, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable (revised Art. 60 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

With the exception of cases of personal injury, the absolute limitation period remains ten years as from the date when the conduct that caused the damages occurred or ended (revised Art. 60 para. 1 CO).

In cases of personal injury, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable. Currently the relative limitation period amounts to one year only.

The new absolute limitation period in cases of personal injury amounts to twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 60 para. 1bis CO). Under the current law, there was no special absolute limitation period for cases of personal injury, so that the ordinary 10-year period applied (Art. 60 para. 1 CO).

If conduct, which gives rise to liability under tort law, is also punishable under criminal law, the (longer) limitation period under criminal law remains applicable (cf. Art. 97 of the Swiss Criminal Code). However, where a first-instance criminal judgment is rendered before the conduct is time-barred under criminal law, the limitation periods ends not earlier than three years as from that criminal judgment (revised Art. 60 para. 2 CO). The current law does not provide for such an additional three-year limitation period.

B. Unjust enrichment law

In unjust enrichment law, the new relative limitation period amounts to three years as from the date on which the injured party knows about the claim (revised Art. 67 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

The absolute limitation period is not affected by the revision and remains ten years after the date on which the claim arises (revised Art. 67 para. 1 CO).

C. Contract law

With regard to contractual claims, the ordinary limitation period remains ten years from the due date (Art. 127 CO). Furthermore, the shorter limitation period of five years from the due date applicable to (amongst others) claims for rent, interest on capital and other periodic payments, (most) claims out of employment relationships etc. remains unchanged too (Art. 128 CO).

However, in cases of personal injury, the revised statute of limitations introduces a new relative limitation period of three years from the date on which the injured party became aware of the damage, as well as a new absolute limitation period of twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 128a CO). The current law does not provide for distinct relative and absolute limitation periods for contractual claims in cases of personal injury. Instead, the ordinary ten-year limitation period (Art. 127 CO) usually applied to such cases.

D. Summary

In summary, the most important elements of the revised statute of limitations are the longer (trebled) relative limitation periods in tort and unjust enrichment law (i.e., three years instead of one year) and the new special rules for cases of personal injury, which now benefit from a 20-year absolute limitation period.

Transitional provisions / application of the revised statute of limitations to pre-existing claims

The longer limitation periods under the revised CO apply to any claims that are not yet time-barred when the revision enters into force (i.e., on 1 January 2020; revised Art. 49 para. 1, Final Title of the Swiss Civil Code). In other words, the limitation periods of any claims that do not become time-barred until 31 December 2019 at the latest will be prolonged. This is of particular relevance with regard to claims based on tort and unjust enrichment; the short one-year relative limitation periods under the current law will be extended by another two years.

In contrast, the current law remains applicable in case the revised statute of limitations provides for shorter limitation periods (revised Art. 49 para. 2, Final Title of the Swiss Civil Code). This concerns, in particular, contractual claims in cases of personal injury. The new three-year relative limitation period under the revised law might not apply to such claims, as the current statute of limitations does not provide for a relative limitation period at all.

Further changes brought by the revision

In addition to the changes of the limitation periods set out above, the revision of the statute of limitations contains numerous further modifications. Some of them are listed in the following:

  1. Limitation periods do not commence or are suspended in the event that a claim cannot be asserted for objective reasons before any court worldwide (revised Art. 134 para. 1 no. 6 CO). The current law provides for such non-commencement or suspension only if the claim cannot be brought before a Swiss court.
  2. Parties to a dispute may agree in writing that limitation periods shall be suspended during settlement discussions, mediation proceedings or other out-of-court settlement proceedings (revised Art. 134 para. 1 no. 8 CO).
  3. Once a limitation period has commenced to run, waivers of statute of limitation defenses are admissible, but must not exceed ten years (revised Art. 141 para. 1 CO). Any such waivers must be in writing (new Art. 141 para. 1bis CO).
  4. In general terms and conditions (“GTC”), statute of limitation defenses may be waived by the party who makes use of the GTCs only. In contrast, a waiver by the party on whom the GTCs are imposed (e.g., consumers) is ineffective (new Art. 141 para. 1bis CO).
  5. The limitation period for an actio pauliana under the Swiss Debt Enforcement and Bankruptcy Act (“DEBA”) is extended to from currently two years to three years after service of a loss certificate, the opening of bankruptcy proceedings or the confirmation of a composition agreement with an assignment of assets (whichever is applicable; revised Art. 292 DEBA).

If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.

Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.

In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.

Europe

Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.

Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.

Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.

Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.

Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.

However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.

Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?

If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.

An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.

The race to regulating DLT in Europe

Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.

EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.

Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.

In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.

France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.

Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.

Conclusions

To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.

To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.

The author of this post is Alessandro Mazzi.

Javier Gaspar Álvarez-Novoa

业务领域

  • 艺术
  • 契约
  • 公司法
  • 征信
  • 跨国投资
联系方式 Javier

写信给 Javier





    阅读 Legalmondo 的隐私政策
    This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

    法国 – 国际合同的突然终止

    2020年2月12日

    • 法国
    • 契约

    This week the Interim Injunction Judge of the Netherlands Commercial Court ruled in summary proceedings, following a video hearing, in a case on a EUR 169 million transaction where the plaintiff argued that the final transaction had been concluded and the defendant should proceed with the deal.

    This in an – intended – transaction where the letter of intent stipulates that a EUR 30 million break fee is due when no final agreement is signed.

    In addition to ruling on this question of construction of an agreement under Dutch law, the judge also had to rule on the break fee if no agreement was concluded and whether it should be amended or reduced because of the current Coronavirus / Covid-19 crisis.

    English Language proceedings in a Dutch state court, the Netherlands Commercial Court (NCC)

    The case is not just interesting because of the way contract formation is construed under Dutch law and application of concepts of force majeure, unforeseen circumstances and amendment of agreements under the concepts of reasonableness and fairness as well as mitigation of contractual penalties, but also interesting because it was ruled on by a judge of the English language chamber of the Netherlands Commercial Court (NCC).

    This new (2019) Dutch state court offers a relatively fast and cost-effective alternative for international commercial litigation, and in particular arbitration, in a neutral jurisdiction with professional judges selected for both their experience in international disputes and their command of English.

    The dispute regarding the construction of an M&A agreement under Dutch law in an international setting

    The facts are straightforward. Parties (located in New York, USA and the Netherlands) dispute whether final agreement on the EUR 169 million transaction has been reached but do agree a break fee of €30 million in case of non-signature of the final agreement was agreed. However, in addition to claiming there is no final agreement, the defendant also argues that the break fee – due when there is no final agreement – should be reduced or changed due to the coronavirus crisis.

    As to contract formation it must be noted that Dutch law allows broad leeway on how to communicate what may or may not be an offer or acceptance. The standard is what a reasonable person in the same circumstances would have understood their communications to mean.  Here, the critical fact is that the defendant did not sign the so-called “Transaction Agreement”. The letter of intent’s binary mechanism (either execute and deliver the paperwork for the Transaction Agreement by the agreed date or pay a EUR 30 million fee) may not have been an absolute requirement for contract formation (under Dutch law) but has significant evidentiary weight. In M&A practice – also under Dutch law – with which these parties are thoroughly familiar with, this sets a very high bar for  concluding a contract was agreed other than by explicit written agreement. So, parties may generally comfortably rely on what they have agreed on in writing with the assistance of their advisors.

    The communications relied on by claimant in this case did not clear the very high bar to assume that despite the mechanism of the letter of intent and the lack of a signed Transaction Agreement there still was a binding agreement. In particular attributing the other party’s advisers’ statements and/or conduct to the contracting party they represent did not work for the claimant in this case as per the verdict nothing suggested that the advisers would be handling everything, including entering into the agreement.

    Court order for actual performance of a – deemed – agreement on an M&A deal?

    The Interim Injunction Judge finds that there is not a sufficient likelihood of success on the merits so as to justify an interim measure ordering the defendant to actually perform its obligations under the disputed Transaction Agreement (payment of EUR 169 million and take the claimant’s 50% stake in an equestrian show-jumping business).

    Enforcement of the break fee despite “Coronavirus”?

    Failing the conclusion of an agreement, there was still another question to answer as the letter of intent mechanism re the break fee as such was not disputed. Should the Court enforce the full EUR 30 million fee in the current COVID-19 circumstances? Or should the fee’s effects be modified, mitigated or reduced in some way, or  the fee agreement should even be dissolved?

    Unforeseen circumstances, reasonableness and fairness

    The Interim Injunction Judge rules that the coronavirus crisis may be an unforeseen circumstance, but it is not of such a nature that, according to standards of reasonableness and fairness, the plaintiff cannot expect the break fee obligation to remain unchanged. The purpose of the break fee is to encourage parties to enter into the transaction and attribute / share risks between them. As such the fee limits the exposure of the parties. Payment of the fee is a quick way out of the obligation to pay the purchase price of EUR 169 million and the risks of keeping the target company financially afloat. If financially the coronavirus crisis turns out less disastrous than expected, the fee of EUR 30 million may seem high, but that is what the parties already considered reasonable when they waived their right to invoke the unreasonableness of the fee. The claim for payment of the EUR 30 million break fee is therefore upheld by the Interim Injunction Judge.

    Applicable law and the actual practice of it by the courts

    The relevant three articles are in this case articles 6:94, 6:248 and 6:258 of the Dutch Civil Code. They relate to the mitigation of contractual penalties, unforeseen circumstances and amendment of the agreement under the tenets of reasonableness and fairness. Under Dutch law the courts must with all three exercise caution. Contracts must generally be enforced as agreed. The parties’ autonomy is deemed paramount and the courts’ attitude is deferential. All three articles use language stating, essentially, that interference by the courts in the contract’s operation is allowed only to avoid an “unacceptable” impact, as assessed under standards of reasonableness and fairness.

    There is at this moment of course no well- established case law on COVID-19. However, commentators have provided guidance that is very helpful to think through the issues. Recently a “share the pain” approach has been advocated by a renowned law Professor, Tjittes, who focuses on preserving the parties’ contractual equilibrium in the current circumstances. This is, in the Court’s analysis, the right way to look at the agreement here. There is no evidence in the record suggesting that the parties contemplated or discussed the full and exceptional impact of the COVID-19 crisis. The crisis may or may not be unprovided for.  However, the court rules in the current case there is no need to rule on this issue. Even if the crisis is unprovided for, there is no support in the record for the proposition that the crisis makes it unacceptable for the claimant to demand strict performance by the defendant. The reasons are straightforward.

    The break fee allocates risk and expresses commitment and caps exposure. The harm to the business may be substantial and structural, or it may be short-term and minimal. Either way, the best “share the pain” solution, to preserve the contractual equilibrium in the agreement, is for the defendant to pay the fee as written in the letter of intent. This allocates a defined risk to one party, and actual or potential risks to the other party. Reducing the break fee in any business downturn, the fee’s express purpose – comfort and confidence to get the deal done – would not be accomplished and be derived in precisely the circumstances in which it should be robust. As a result, the Court therefore orders to pay the full EUR 30 million fee. So the break fee stipulation works under the circumstances without mitigation because of the Corona outbreak.

    The Netherlands Commercial Court, continued

    As already indicated above, the case is interesting because the verdict has been rendered by a Dutch state court in English and the proceedings where also in English. Not because of a special privilege granted in a specific case but based on an agreement between parties with a proper choice of forum clause for this court. In addition to the benefit to of having an English forum without mandatorily relying on either arbitration or choosing an anglophone court, it also has the benefit of it being a state court with the application of the regular Dutch civil procedure law, which is well known by it’s practitioners and reduces the risk of surprises of a procedural nature.  As it is as such also a “normal” state court, there is the right to appeal and particularly effective under Dutch law access to expedited proceeding as was also the case in the example referred to above. This means a regular procedure with full application of all evidentiary rules may still follow, overturning or confirming this preliminary verdict in summary proceedings.

    Novel technology in proceedings

    Another first or at least a novel application is that all submissions were made in eNCC, a document upload procedure for the NCC. Where the introduction of electronic communication and litigation in the Dutch court system has failed spectacularly, the innovations are now all following in quick order and quite effective. As a consequence of the Coronavirus outbreak several steps have been quickly tried in practice and thereafter formally set up. At present this – finally – includes a secure email-correspondence system between attorneys and the courts.

    And, also by special order of the Court in this present case, given the current COVID-19 restrictions the matter was dealt with at a public videoconference hearing on 22 April 2020 and the case was set for judgment on 29 April 2020 and published on 30 April 2020.

    Even though it is a novel application, it is highly likely that similar arrangements will continue even after expiry of current emergency measures. In several Dutch courts videoconference hearings are applied on a voluntary basis and is expected that the arrangements will be formalized.

    Eligibility of cases for the Netherlands Commercial Court

    Of more general interest are the requirements for matters that may be submitted to NCC:

    • the Amsterdam District Court or Amsterdam Court of Appeal has jurisdiction
    • the parties have expressly agreed in writing that proceedings will be in English before the NCC (the ‘NCC agreement’)
    • the action is a civil or commercial matter within the parties’ autonomy
    • the matter concerns an international dispute.

    The NCC agreement can be recorded in a clause, either before or after the dispute arises. The Court even recommends specific wording:

    “All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”).”

    The phrase “to the exclusion of the jurisdiction of any other courts” is included in light of the Hague Convention on Choice of Court Agreements. It is not mandatory to include it of course and parties may decide not to exclude the jurisdiction of other courts or make other arrangements they consider appropriate. The only requirement being that such arrangements comply with the rules of jurisdiction and contract. Please note that choice of court agreements are exclusive unless the parties have “expressly provided” or “agreed” otherwise (as per the Hague Convention and Recast Brussels I Regulation).

    Parties in a pending case before another Dutch court or chamber may request that their case be referred to NCC District Court or NCC Court of Appeal. One of the requirements is to agree on a clause that takes the case to the NCC and makes English the language of the proceedings. The NCC recommends using this language:

    We hereby agree that all disputes in connection with the case [name parties], which is currently pending at the *** District Court (case number ***), will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or ”NCC District Court). Any action for interim measures, including protective measures, available under Dutch law will be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCC Court of Appeal”).

    To request a referral, a motion must be made before the other chamber or court where the action is pending, stating the request and contesting jurisdiction (if the case is not in Amsterdam) on the basis of a choice-of-court agreement (see before).

    Additional arrangements in the proceedings before the Netherlands Commercial Court

    Before or during the proceedings, parties can also agree special arrangements in a customized NCC clause or in another appropriate manner. Such arrangements may include matters such as the following:

    • the law applicable to the substantive dispute
    • the appointment of a court reporter for preparing records of hearings and the costs of preparing those records
    • an agreement on evidence that departs from the general rules
    • the disclosure of confidential documents
    • the submission of a written witness statement prior to the witness examination
    • the manner of taking witness testimony
    • the costs of the proceedings.

    Visiting lawyers and typical course of the procedure

    All acts of process are in principle carried out by a member of the Dutch Bar. Member of the Bar in an EU or EEA Member State or Switzerland may work in accordance with Article 16e of the Advocates Act (in conjunction with a member of the Dutch Bar). Other visiting lawyers may be allowed to speak at any hearing.

    The proceedings will typically follow the below steps:

    • Submitting the initiating document by the plaintiff (summons or request as per Dutch law)
    • Assigned to three judges and a senior law clerk.
    • The defendant submits its defence statement.
    • Case management conference or motion hearing (e.g. also in respect of preliminary issues such as competence, applicable law etc.) where parties may present their arguments.
    • Judgment on motions: the court rules on the motions. Testimony, expert appointment, either at this stage or earlier or later.
    • The court may allow the parties to submit further written statements.
    • Hearing: the court interviews the parties and allows them to present their arguments. The court may enquire whether the dispute could be resolved amicably and, where appropriate, assist the parties in a settlement process. If appropriate, the court may discuss with the parties whether it would be advisable to submit part or all of the dispute to a mediator. At the end of the hearing, the court will discuss with the parties what the next steps should be.
    • Verdict: this may be a final judgment on the claims or an interim judgment ordering one or more parties to produce evidence, allowing the parties to submit written submissions on certain aspects of the case, appointing one or more experts or taking other steps.

    Continuous updates, online resources Netherlands Commercial Court

    As a final note the English language website of the Netherlands Commercial Court provides ample information on procedure and practical issues and is updated with a high frequence. Under current circumstance even at a higher pace. In particular for practitioners it’s recommended to regularly consult the website. https://www.rechtspraak.nl/English/NCC/Pages/default.aspx

    This is a summary of the approved measures, which unfortunately for both tenants and landlords do not include any public aid or tax relief and just refer to a postponement in the payment of the rent.

    Premises to which they are applied

    Leased premises dedicated to activities different than residential: commercial, professional, industrial, cultural, teaching, amusement, healthcare, etc. They also apply to the lease of a whole industry (i.e. hotels, restaurants, bars, etc., which are the most usual type of businesses object of this deal).

    Types of tenants

    • Individual entrepreneurs or self-employed persons who were registered before Social Security before the declaration of the state of alarm on March 14th, 2020
    • Small and medium companies, as defined by article 257.1 of the Capital Companies Act: those who fulfil during two consecutive fiscal years these figures: assets under € 4 million, turnover under € 8 million and average staff under 50 people

    Types of landlords

    In order to benefit from these measures, the landlord should be a housing public entity or company or a big owner, considering as such the individuals or companies who own more than 10 urban properties (excluding parking places and storage rooms) or a built surface over 1.500 sqm.

    Measures approved

    The payment of the rent is postponed without interest meanwhile the state of alarm is in force, but in any case, for a maximum period of four months. Once the state of alarm is overcome, and in any case in a maximum term of four months, the postponed rents should be paid along a maximum period of two years, or the duration of the lease agreement, should it be less than two years.

    For landlords different to those mentioned above

    The tenant could apply before the landlord for the postponement in the payment of the rent (but the landlord is not obliged to accept it), and the parties can use the guarantee that the tenant should mandatorily have provided at the beginning of any lease agreement (usually equal to two month’s rent, but could be more if agreed by the parties), in full or in part, in order to use it to pay the rent. The tenant will have to provide again the guarantee within one year’s term, or less should the lease agreement have a shorter duration.

    Activities to which it is applied

    Activities which have been suspended according to the Royal Decree that declared the state of alarm, dated march, 14ht, 2020, or according to the orders issued by the authorities delegated by such Royal Decree. This should be proved through a certificated issued by the tax authorities.

    If the activity has not been directly suspended by the Royal Decree, the turnover during the month prior to the postponement should be less than 75% of the average monthly turnover during the same quarter last year. This should be proved through a responsible declaration by the tenant, and the landlord is authorised check the bookkeeping records.

    Term to apply and procedure

    The tenant should apply for these measures before the landlord within one month’s term from the publication of the Royal Decree-law, that is, from April 22nd, 2020, and the landlord (in case belongs to the groups mentioned in point c) is obliged to accept the tenant’s request, except if both parties have already agreed something different. The postponement would be applied to the following month.

    As the state of alarm was declared more than one month ago (March 14th), landlords and tenants have already been reaching some agreements, for example 50% rent reduction during the state of alarm, and 50% rent postponement during the following 6 months. Tenants who do not reach an agreement with the landlord could face an eviction procedure, however court procedures are suspended during the state of alarm. We have also seen some abusive non-payment of rent by tenants.

    When is becomes impossible to reach an agreement with the landlord, tenants have the legal remedy of claiming in Court for the application of the “rebus sic stantibus” principle, which was highly demanded during the 2008 financial crisis but very seldom applied by the Courts. This principle is aimed to re-balance the parties’ obligations when their situation had deeply changed because of unforeseen circumstances beyond their control. This principle is not included in the Spanish Civil Code, but the Supreme Court has accepted its application, in a very restricted way, in some occasions.

    Summary – What can we learn in the time of Covid-19 that can be used in mediation? And what can we learn from mediation to be used in this crisis?

    As you know, mediation is a way to solve conflicts in which the parties keep in their hands the possible solution. They do not need to come to a third party (judge or arbitrator) to impose the answer to them. Parties can imagine more freely what they need, and how to solve their differences.

    Some of the elements and techniques mediators use in a mediation can also be used in and learnt from the current Time of Covid-19. And the current crisis also helps us to understand why they are so important in mediation.

    Cooperation to get the solution is better than unilateral and imposed decisions

    We usually tend to think that cooperation is a sign of weakness and that we recur to it only if we cannot impose or view or win our case. However, as in the time of Covid-19 where countries, scientists and people should fight together, when facing a conflict cooperation and going beyond your positions brings you the possibility to explore solutions that otherwise remain hidden.

    « Now it is increasingly recognized that there are cooperative ways of negotiating our differences and that even if a “win-win” solution cannot be found, a wise agreement can still often be reached that is better for both sides than the alternative. […]

    Three points about shared interests are worth remembering. First, shared interests lie latent in every negotiation. They may not be immediately obvious. Second, shared interests are opportunities, not godsends. Third, stressing your shared interests can make the negotiation smoother and more amicable. » [Fisher, Richard; Ury, William. “Getting to Yes: Negotiating an agreement without giving in”].

    Listening is highly effective

    In the time of Covid-19 we tend to accept better information that confirms our beliefs and we accept better indications that are in accordance with our preferences and beliefs. Nevertheless, also in this time, listening is of essential importance to understand the causes and solutions.

    A mediator will always listen to the parties and will help them to do the same. Listening the other’s side arguments, its explanation of the facts, interests and needs, the reasons for its decisions… is also of utmost importance to find a joint solution.

    «Whether you are a neutral third party (professional facilitator, friend, or manager) or one of the participants, as you listen to all the stories, you begin to sense the best solution. » [Levine, Stewart. “Getting to Resolution: Turning Conflict Into Collaboration.”]

    A solution for me can also be a solution for you

    In the time of Covid-19 it seems clear to all of us that a common solution is the only possible one. A vaccine will save the entire world. In mediation, the main benefit is to understand that, unlike a court judgement or arbitral award, a joint (not imposed) solution is possible and a benefit for me does not imply a damage or a lost for my opponent.

    «A mediator works to understand each disputant’s perspective and to look for the value in it. In this role, you refrain from judging whose side is right or wrong. Instead, you try to see the merit in each side’s perspective. » [Shapiro, Daniel. “Building Agreement”].

    We master the solution and we create the agreement in a safe environment

    The solution to the current crisis does not only depend on the authorities and on the health professionals. A great part of the solution relies on everybody’s participation, washing our hands, respecting the social distance, staying safe at home avoiding contagion and the collapse of hospitals.

    In court we leave the decision of the conflict in the hands of a third party –the judge, the arbitrator­–. In a mediation, on the contrary, the solution remains in our hands. We know what our interests are, we create our agreement. Our imagination is our ally in finding the solution together with the counterparty and the assistance and experience of the mediator who does not impose it but helps the parties to find it. Quite often, what parties could get in mediation goes far beyond what a judge would’ve been able to grant. And this in a confidential environment.

    «The Sage is self-effacing and scanty of words. When his task is accomplished and things have been completed, all the people say, “We ourselves have achieved it!” » [Lao Tzu]

    Emotions do matter

    Good and bad emotions are inevitable. Particularly in periods of uncertainty, crisis and loose of control, we all face strong emotions. This is true in situations like this Covid-19 and in all conflicts, and not only in personal ones. Egos, envies, fears, anxieties… are also part of our day-to-day life, work and business, but they are rarely considered in courts when solving your conflicts. A mediator helps you to take them into account in a safe environment and as a part of the conflict itself.

    «Solving problems seems easier than talking about emotions. The problem is that when feelings are at the heart of what’s going on, they are the business at hand and ignoring them is nearly impossible. » [Stone, Douglas. “Difficult Conversations: How to Discuss What Matters Most”].

    Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19, even though it affects and produces effects in many different legal fields, does not include any reference to contracts for leases of real estate, or houses, premises or offices.

    The purpose of this note is to analyze the effects of the situation of the State of Alarm regarding those leases of offices or premises that have been forced to close in application of the decree; those others that remain totally or partially open and in operation, although with a reduced or minimal activity, in principle are not subject to the conclusions reached below without prejudice to the fact that there are individualized cases to which, despite the fact that there is not a complete closure, reasonably and logically can be applied to them.

    It is not excluded in any way that in the event of an extension of the validity of the State of Alarm, a regulation that affects the leasing contracts could be published, but for the moment this has not happened. If this were to happen, the content of said norm would apply.

    Based on the principle of freedom of covenants enshrined in art. 1255 of the Spanish Civil Code, which allows the parties signing the contract to agree (i) what scenarios and situations should be considered as constituting cases of Force Majeure and Act of God and (ii) what the contractual consequences of such scenarios should be, the first exercise that must be done is to check if the contract includes a regulatory clause of Force Majeure and its effects; if so, such clause must be followed and its analysis is left out of this note.

    In the absence of express regulation in the contract, the provisions of the Civil Code and specifically article 1105 would apply.

    COVID-19 as Force Majeure

    COVID-19 is an event that in principle meets the requirements of the Civil Code to be classified as an event of Force Majeure (art. 1105 Civil Code) since:

    • It is a foreign act and not attributable to the contractor who is the debtor of the benefit or obligation.
    • It is unpredictable, or if it were said to be “predictable”, it is certainly inevitable.
    • The event in question, the pandemic, must be a cause and result in the breach of the obligation, that is, there must be a causal link.

    Therefore, fulfilling the three requirements, the first conclusion that we reach is that very foreseeably, the Spanish Courts will classify as “Force Majeure” the situation caused by COVID 19 when a judicial dispute is raised in which such matter is discussed between litigants. We will now analyze the consequences of this status.

    Consequences of considering COVID-19 as an event of Force Majeure

    Most of the doctrine and jurisprudence understand that the effects of classifying a scenario as a case of Force Majeure in principle are:

    • Total and definitive impossibility of complying; releasing the debtor from the fulfillment of the obligation.
    • Partial inability to comply; the debtor is released only in the part that it is impossible to fulfill, but still bound by the part that can be carried out.
    • Temporary inability to comply; the debtor is released from the responsibility for default as long as the exceptional situation persists.

    Now, let us analyze how it would affect to considerate the epidemic as Force Majeure in relation to lease agreements for uses other than housing.

    Regarding the payment of rent

    The question to answer is if the classification of the current pandemic situation as a case of Force Majeure frees the tenant (whose premises have been forced to close by order of the government authority) from the obligation to pay the rent while said closing obligation persists, including in the concept of “release” different alternatives: total or partial cancellation and / or total or partial postponement.

    We are meeting these days with a frequent reaction among some tenants, who, unilaterally have informed their landlords that considering COVID 19 an event of force majeure and having been forced to close the premises / office, they suspend the payment of the rent while said situation remains. They do not terminate the contract, they do not hand over the possession, they remain in it (the premises remain closed and not operational) but they suspend the payment (it is not clear whether suspending in this case means liberating himself from the payment of the rent or postponing its payment for when the Force Majeure scenario ends).

    Arguments against liberation

    As much as this attitude can be considered “understandable” from the perspective of the lessee, not from the point of view of the lessor, said consideration runs into an obstacle: the interpretation of the Force Majeure made by the Supreme Court regarding pecuniary payment obligations, according to the Civil Sentence of May 19, 2015:

    “Not being able to consider, in the case of pecuniary debts, the subjective impossibility – insolvency – nor the objective or formal imposition, the doctrine concludes that it is not possible to imagine that if the impossibility is due to a fortuitous event it could have as effect the extinction of the obligation.

    The exoneration of the debtor by fortuitous event is not absolute, it has exceptions, as provided for in article 1105 CC, and one of them, by application of the “genus nunquam perit” principle, would be in cases of obligations to deliver generic things.

    In such circumstances, the pecuniary debtor is obliged to fulfill the main obligation, without the economic adversities freeing him from it, since what is owed is not something individualized that has perished, but something generic such as money”.

    In conclusion: it does not seem that this jurisprudential criterion allows to defend that the fulfillment of the pecuniary obligations is released, extinguished or that its breach is justified in cases of Force Majeure, therefore the pecuniary debtor, in this case the lessee, in application of this criterion and due to the generic condition of the money, would be obliged to fulfill his main obligation not being freed from it by the unforeseen economic adversities on the basis of Force Majeure.

    Arguments in favor of liberation: art. 1575 of the Civil Code

    Having said the foregoing, reference should be made to an article of the Civil Code that, with certainty, will be profusely cited in the upcoming judicial conflicts.

    The art. 1575, dealing with the leasing of rustic estates, recognizes the lessee’s right to the reduction of rent in the event of loss of more than half of the fruits (unless otherwise agreed) in “fortuitous, extraordinary and unforeseen cases … such as fire, war, plague, unusual flood, locust, earthquake or another equally unusual that the contractors have not been able to rationally foresee ”.

    Is this article, foreseen for rustic leases, applicable to urban leases?

    The art. 4.1 CC allows the analogical application of the rules when (i) they do not contemplate a specific assumption and (ii) they regulate a similar situation in which “identity of reason” may be appreciated.

    The Sentence of the Supreme Court from January 15, 2019, that solved a conflict of a lease of a building used as hotel, in which the tenant had sought the reduction of the rent under the clause “rebus sic stantibus” by the crisis of 2008 and had alleged in his favor the application of art. 1575, established:

    “The argumentation of the appealed judgment rejecting the claim to lower the agreed price is also not contrary to the legal criterion that follows from art. 1575 CC, which is the rule that allows the reduction of income in the leasing of productive assets that do not derive from risks of the business itself, it also requires that the loss of benefits originates from extraordinary and unforeseen fortuitous cases, something that by its own rarity could not have been foreseen by the parties, and that the loss of fruits is more than half of the fruits. In this particular case, none of these circumstances concur. The decrease in rents comes from market developments, the parties anticipated the possibility that in some years the profitability of the hotel would not be positive for the lessee and the losses alleged by NH in the operation of the Almería hotel are less than fifty per hundred, without taking into account that the overall result of his activity as manager of a hotel chain is, as the Audience considers proven in view of the consolidated management report, positive”.

    The Supreme Court does not admit the application of art. 1575, but not because it is considered not applicable to non-rustic leases, but because the Court concludes that the requirements are not fulfilled since the 2008 crisis was neither unpredictable and because the lessee’s losses do not exceed 50%.

    But, that interpretation of the Supreme Court together with the wording of art. 4.1 CC would support the claim of the lessee who has no incomes during the State of Alarm to demand a reduction in rental fee that fits the principle of proportionality.

    Regarding early termination at the request of the lessee

    However, we may find situations in which the lessee considering the current situation, decides to terminate the lease in advance, delivering the premises to the lessor.

    They are cases in which the early termination of the contract is intended, without respecting (i) or the mandatory term (ii) or the previous notice, in both cases under the hypothesis that they are thus regulated in the contract.

    In these scenarios, we understand that it may be defendable that, due to the situation of force majeure caused by COVID 19 and in application of art. 1105 of the CC, the lessee is exempt from the obligation:

    1. To respect the mandatory term of the lease
    2. To give prior notice to the lessor in case of early termination of the contract

    In both cases, the contract would be terminated with the delivery of possession of the premises, without prejudice to having to respect the other obligations set forth in the contract for termination and delivery, provided that they are not equally affected by the situation of Force Majeure.

    Our opinion is that, also in application of Article 1,105 of the CC, the thesis that the lessee would be released from any obligation to compensate damages to the lessor for said advance resolution or breach of the obligatory duration of the contract could be defendable before the Courts.

    Conclusion

    In conclusion, when the Courts decide on the effects of the current pandemic (that they will surely classify as Force Majeure), and how this will affect the obligations of leaseholders who have been forced to close their business, our opinion is the following:

    • Regarding the obligation to pay the rent, despite the contrary criterion of the sentence from May 19, 2015, we find defendable the analogue application of art. 1575 of the CC, based as well on the Supreme Court Sentence from January 15, 2019, in order to demand a proportional and equitable reduction of the rent.
    • Regarding the power of the leaseholder to terminate the contract in advance, in case the leaseholder hands the possession of the property to the lessor, we find defendable to exonerate the leaseholder from complying with the advance notice or mandatory term in case provided in the contract, without the obligation to indemnify the lessor for this reason.

    Application of the Rebus Sic Stantibus clause (“RSS” clause)

    We will analyze below if the RSS clause can be applicable to the case that we are studying and with which consequences.

    Requirements of the RSS clause (Latin aphorism that means “things thus standing”)

    The principle RSS operates as an intrinsic clause (that is, implicit, without the need to expressly agree by the parties) in the contractual relationship, which means that the stipulations established in a contract are so in view of the concurrent circumstances at the time, that is, “things thus standing”, so that any substantial and unforeseen alteration of the same could lead to the modification of the contractual content.

    The RSS clause is not regulated in any article in our laws; It is a doctrinal construction that the jurisprudence has traditionally admitted (examples among many other Supreme Court Sentences from June 30, 2014, February 24, 2015, January 15, 2019, July 18, 2019), with great caution, only in certain cases, and requiring the following requirements:

    • That there has been an extraordinary alteration in the circumstances of the contract, at the time that it must be fulfilled, in relation to those present at the time the parties entered the contract.
    • To analyze whether an incident can determine the extraordinary alteration of the circumstances that gave meaning to the contract, we must a) contrast the scope of said alteration regarding the meaning or purpose of the contract and the commutativity or performance balance thereof; and b) the “normal risk” inherent or derived from the contract must be excluded.
    • That there has been an exorbitant disproportion, out of all calculation, between the obligations of the contracting parties, causing an imbalance between them.
    • That the above occurs because of radically unpredictable circumstances.
    • That there is no other remedy to overcome the situation.

    Historically, our courts have been very reluctant to apply RSS, although since the economic crisis of 2008-2012 there has been a certain change in criteria and greater jurisprudential receptivity.

    Consequences of the application of RSS

    The doctrine establishes that the application of the RSS does not have in principle terminating effects on the contract, but only modifying effects, aimed at compensating the imbalance of obligations between the parties;  the doctrine establishes that this only applies to long-term contracts or successive contracts with deferred execution.

    In application of the good faith principle, the reaction to an event of fortuitous event, force majeure or, in general, an event that generates a disproportion between the parties, such as that regulated by the RSS clause, should be the amendment of the contract to rebalance the obligations between the parties, and only in the event of material impossibility to comply with the obligations, the resolution of the obligation, in both cases without compensation for non-compliance.

    For this reason, in relation to leasing contracts and in case of closure of the premises by mandatory mandate, we understand that the RSS clause may be:

    • alleged by the leaseholder to request or urge the lessor to downsize or postpone payment.
    • estimated by the judges, when these assumptions are debated before the Courts, when accepting such contractual amendment as equitable and legitimate in order to compensate the imbalance generated by the effects of COVID 19.

    To summarize, the RSS clause can be a tool for the leaseholder that has had to close its premises during the State of Alarm, when negotiating with the lessor an amendment of the contract, trying to postpone the rent while the State of Alarm or negotiating a discount.

    We should bear in mind:

    • That the RSS clause is unavoidably applicable on a casuistic basis, there are no generalizations and it will be necessary to take into account the effect caused by COVID 19 in each specific contractual relationship (Supreme Court Sentence from June 30, 2014 and February 24, 2015) and the real imbalance of benefits produced, and
    • That, as we have said, the Courts are generally reluctant to apply this clause, that they only apply in the absence of any other legal tool and in situations in which the maintenance of the contractual status quo reveals a manifest “injustice ”and a evident and resounding imbalance between the performance of the parties.

    Does this mean that the leaseholder may impose on the lessor a modification of the economic conditions of the contract under the RSS clause (postponement or total or partial cancellation of the payment)?

    We cannot assure this, what we think is that the application of this RSS clause should:

    • Justify a reasonable request from the leaseholder to temporarily change the conditions of the contract (postponement or cancellation, total or partially) that the lessor must reasonably meet.
    • In case of unreasonable refusal of the lessor, we recommend to document as much as possible leaseholder´s request and the possible negotiations or refusal, in order to substantiate a suspension of the payment of the rent, total or partial, during the State of Alarm aimed, not to extinguish his obligation, but to postpone it.

    We will have to wait for the reaction of the Courts when they judge these conflicts, but if we dare to anticipate that it is quite possible that the judicial tendency will be to grant protection to the leaseholder with support in the RSS clause and the principle of business preservation, when it comes to validating certain modifying effects regarding the payment obligations of the leaseholder (total or partial remission of the rent payment during the pandemic crisis, postponement, or partial postponement).

    In any case, it will be essential to prove, that the behavior of the leaseholder seeking protection in the RSS clause to amend the contract, has been strictly adjusted to the principle of good faith (Supreme Court Sentence from April 30, 2015).

    It will also be important to analyze case by case why the displacement of the risk derived from the “exceptional and unforeseen event” from one contractor to the other is justified (Supreme Court Sentence from January 15, 2015) and could well be defended (Supreme Court Sentence from July 18, 2019) that both contracting parties must divide and assume the consequences between the two of them. The judicial decisions will vary in each specific case.

    Conclusions and Recommendations

    In conclusion, it seems that the leaseholder would have two instruments in order to try to successfully suspend or postpone the payment of the rents, the RSS clause and the principle of Force Majeure.

    In our view, the replacement of the contractual balance altered by the exceptional event, may consist of either an extension of the lease payment terms or the application of a total, or partial cancellation of the rental payment obligation while it lasts the State of Alarm, but we understand that it will be defendable that the delay in the payment may not give rise neither to the termination of the contract under art. 1124 Cc nor to the requirement of damages art. 1105 Cc, therefore, will not empower the lessor to urge eviction.

    Therefore, the steps to be followed in each case would be:

    • Carry out an examination of the contract to check whether force majeure and acts of God are regulated and if the current situation is in accordance with the contract provisions.
    • Should nothing be set forth at the contract, and in case the leaseholder has had to close the premises or office, notify the other party of this circumstance and try to negotiate a novation of the lease requesting:
      • Waiver of the payment obligation during the Alarm State.
      • The application of a discount on the payment obligations with both parties sharing the effects of the pandemic, in a proportion to be agreed.
      • Postponement of payment obligations until the premises or office can be reopened with a payment plan for the deferred debt.

    If it is not possible to reach an agreement, it is advisable to try to maintain evidence that the parties have acted in good faith trying to reach a negotiated solution and at the extreme (from the leaseholder´s point of view) announce, without waiting to receive a communication or claim from the Lessor, the suspension of the rental fee payment until reopening of the premises/offices, justifying the same in the Alarm State.

    《法国商业法》规定，贸易商在未给予充分书面通知的情况下终止书面合同或非正式商业关系(第442-1.1条)将被制裁。在过去的二十年中，这已成为商业关系或合同终止（全部或部分终止）时所有补偿行为（最高可达24个月的毛利率以及其他损害赔偿）的经常性法律依据。

    因此，与法国公司签约的外国贸易商应尽量避开该规则的管辖范围 (第一部分)，如果不能，则应理解并控制其实施 (第二部分)。

    简而言之

    外国公司如何避免或控制与法国法律规定的“突然终止商业关系”有关的风险？

    与法国公司做生意的外国公司应该这样做：

    • 与法国供应商或客户尽快达成书面（框架）协议，即使是非常简单的关系也是如此；
    • 规定一项有利于外国法院或仲裁以及外国适用法律的条款，而如果不能选择该条款，则只能服从法国法院和法律。

    外国公司如何才能掌控法国法律规定的“突然终止商业关系”的风险?

    与法国公司做生意的外国公司应该这样做：

    • 要知道，本条适用于几乎所有类型的商业关系或合同，无论是书面的还是非书面的，无论是定期的还是非定期的;
    • 检查其关系/合同是否期限足够且正常和重要，以及对方是否有合理理由相信该关系/合同会继续维持；
    • 给出终止或不续约（甚至是重大修改）的书面通知，其期限主要考虑到关系的持续时间，与合同通知的时限无关；
    • 谨慎地劝告当事方在遭遇不可抗力和严重过失的情况下，搁置“突然终止”；
    • 如果没有充分的通知，则预计赔偿金额为为每月平均毛利率与未获批准的事先通知的期限之积。

    如何避免适用法国的“突然终止”规则?

    在国际事务中，外国公司必须预见其关系是否将受到法国法律的管辖，并且在发生争议的情况下，是否将其关系提交到法国法院。

    “突然终止合同”的法律适用范围是什么?

    对于一个外国公司来说，要正确地掌握适用于“突然终止”的法国法律冲突法规则框架是相当困难的。巴黎上诉法院在2018年9月19日的裁决（RG 16/05579，DES / 娇韵诗）中隐含提及Granarolo欧盟裁决（07 14 16，N°C196 / 15），该裁决将合同资格扩展至大多数业务关系，以改善可预见性，来应对外国公司试图排除法国法律及其“突然终止”规则的行为。

    突然终止书面合同或“默认合同关系”

    根据关于合同适用法律的罗马一号法规 (EC No 593 / 2008，2008年6月17日)：

    • 如果当事各方选择了外国法律：选择外国适用法律的条款将是有效的，并将受到法国法官的尊重 (服从OMR，请参阅下文)，前提是当事各方选择的法律是明示或确定的。
    • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为它可能也是分销商/加盟商所在国的法律等，或是提供合同服务功能的当事方所在国家/地区的法律。

    突然终止“非默认合同关系”

    如果是非正式关系 (即偶尔下达订单)，法国法官将保留侵权行为资格，并将参考适用于非合同义务法律的《罗马二号条例》(第864/2007号，2007年7月11日)。

    • 如果当事各方选择了外国法律：法国法官应执行草拟的外国法选择条款，条件是该条款明确包含侵权案件。
    • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为这可能是损害发生的国家/地区的法律（无论是发生事件的地点还是造成间接后果的地点），是法国受害者遭受终止结果的总部所在地。

    “突然终止合同”是法国的一项压倒一切的强制性规定吗?

    法国法院的立场相当模糊且令人不满。 简而言之：巴黎商事法庭认为“突然终止”不是OMR，巴黎上诉法院（负责“突然终止”案件的唯一法国上诉法院）却支持OMR资格，而最高法院……对此事保持沉默。尽管罗马一号条例（或罗马二号）第9.1条缺乏严格的推理和理由，但很明显，巴黎上诉法院有司法意愿将“突然终止”归为OMR。 因此，如果向法国法院提出“突然终止”的要求，则该法国法院极有可能排除适用的外国法律，而将其替换为产生于第L 442-1. II条“突然终止”。

    因此，外国公司确保“突然终止”不会妨碍合同的终止或停止续签的唯一可能性，不仅是选择一项适用的外国法律，而且是确保将争端提交外国法官或仲裁庭。

    如何避免法国法院对“突然终止”索赔的管辖权?

    “突然终止”索赔和欧盟内部共同承包商

    欧洲法院的裁决(Granarolo, 2016年7月14日，NC196/15)区分了以下索赔:

    • 书面框架合同或默认合同关系 (仅当欧洲法院所列出的证据由国家法官确定时才存在，即相互承认的关系和承诺的限期，如排他性、特价或交货与付款条件、竞业禁止等)：根据布鲁塞尔一号重铸条例下的管辖权冲突规则，此类索赔具有合同性质；
    • 非正式关系——一种非默认的合同关系 (即不时下达的命令)：在布鲁塞尔一号重铸条例下这样的请求具有侵权性质。

    （a）谁是“突然终止”书面合约或“默契合约关系”的法官?

    • 为了外国法院的利益，管辖权条款将由法国法院执行，即使它是一个不对称的条款 (最高法院，2015年10月7日，Ebizcuss.com / 苹果销售国际)。
    • 在缺乏法院条款选择的情况下，如果以“突然终止”为基础提起诉讼的法国索赔人是服务提供者，例如分销商，代理人等，则法国法院可能具有管辖权 (请参阅欧洲法院 Corman Collins案， 19 12 13，C-9 / 12和布鲁塞尔一号重铸条例第7.1.b.2条)。

    （b）谁是“非默认合同关系”“突然终止”的法官？

    • 我们认为，法国法院可能会继续执行侵权案件中的管辖权条款，特别是明确包含侵权诉讼的条款 (最高法院，1°Ch.Civ.，2017年1月18日，n°15-26105，里维埃拉汽车/阿斯顿马丁拉贡达有限公司)。
    • 在缺乏法院条款选择权的情况下，法国法院将对“突然终止”索赔具有管辖权，所以由位于发生损害事件地点的法官（布鲁塞尔一号第7.3条）负责，而该地点是“突然终止”生效的地方……即如果法国公司是受害者，该地点就在法国。

    “突然终止”索赔和非欧盟共同承包商

    如果一名法国受害者基于非欧盟公司的“突然终止”向法国法院提出索赔，Granarolo解决方案将不在事实上适用。在非欧盟关系中，法国法官只能继续保留侵权资格。在这种情况下，法国法院可以根据损害事件发生的地点保留其管辖权。然而，即使是基于侵权的索赔，在法国也可以承认管辖权条款。

    “突然终止”索赔和仲裁

    制定一项临时条款或机构仲裁条款可能是规避法国法院管辖权的最安全解决方案。理想情况下，该条款将在法国境外确定仲裁庭的席位。根据仲裁员的胜任力原则，法国法院宣布其自身无能力仲裁，除非仲裁条款明显无效或明显不适用，无论合同或侵权理由如何 (特别参见巴黎上诉法院，2019年9月5日，n / 17/03703)。

    结论：外国公司不应公开管辖权和管辖法律问题。他们必须协商出一个安全港湾，否则，被终止的法国受害人将可能有权向法国法官提出“突然终止”的要求（请参阅下面第2部分的内容）

    如何掌握“突然终止”法律的规则?

    在法国法律适用的情况下，外国公司将面临法国商业法典L442 -1.II条对“突然终止”的制裁。 作为一项初步说明，首先必须知道，“突然终止”责任的执行是通知时间太短的结果。 因此，该方案没有制定自动补偿规则。换句话说，一旦终止的发起人发出了合理的通知，基于该通知的责任就可以被免除。

    “突然终止”的先决条件：已建立的商业关系

    所有合同均受该法律制度的约束，法规中规定了特定终止通知的合同除外，例如商业代理合同和公路分包合同的货物运输。

    首先，必须存在一种可以通过书面合同或事实上当事双方的行为所证明的关系。这种关系可以建立在一系列默认续签的合同或由多个订单实现的正常业务流程基础之上。

    第二，这种关系必须具有既定的特征。没有法律定义，但是判例法年复一年地对这一概念进行了界定，判例法已经建立了一个客观标准和一个更主观的标准。

    (a) 客观标准意味着双方之间有足够长期、经常和重要的关系。关系的持续时间是最重要的标准。这种关系必须是有规律的，也就是说，它不能被打断(太频繁或太长时间)。这种关系最终必须是有意义的，并且在数量或价值上代表双方之间的业务流。

    (b) 主观测试主要侧重于受害人在基于事实层面上认为继续的合同/关系（例如投资要求，几年内的预算等）将走向破裂的合理信念。相反，正是基于对共同的未来缺乏合理信念的结果，即当终止方多次提出招标要求时，终止方可以证明其缺乏稳定的品格 (除非这是一个诡计)。

    提前预计“突然终止”索赔

    (a) 终止可以是全部或部分的

    完全破裂是通过关系的完全终止来实现的，例如终止合同、停止买方发送订单或停止供应商记录订单。但是要处理的最复杂的情况是所谓的部分破裂，它是通过对部分影响关系但不会将其减少为零的部分进行修改而得出的 (例如：价格上涨或下跌，付款或交付条件的改变)。

    (b) 终止必须以合理的事先书面通知为准

    通知必须以书面形式通知。没有书面通知本身就是一种违约行为。通知必须清楚地反映一方当事人全部或部分断绝关系的意愿，并且必须清楚地表明这一意愿。双方必须区分正式违约通知函和随后发出的违约通知（如适用）。在通知期间内，双方必须完全遵守所有合同条件。

    在2019年改革之前，法国法律没有明确规定应遵守的事先通知的期限。如果判例法规定了若干标准，则应当指出，最重要的标准是关系的持续时间。法官还考虑到受害人所占的营业额份额、领土排他性的存在与否、产品的性质和活动的范围、受害者进行投资的重要性（特别是对于所涉关系的投资），最后是经济依赖的状态。法官们发出通知的时间长短不一。对通知的评估是逐案进行的。即使是几乎对于一段关系中的一年，也可能需要一个月的通知时间（根据关系中的其他标准进行上下调整），很难给出一个黄金法则。2019年4月24日的法令根据第l442 -1. i条把合理到期的通知期限限制为18个月。但大部分诉讼仍存在不确定性，因为只有特别长寿或特别敏感的关系，才可能导致高于18个月的通知分配时间。

    法官不受合同规定的合同通知书的约束。但是，如果违约方还违反了合同规定的终止条款和条件，则受害人可以在突然终止的侵权基础上，或违反合同义务的基础上，追究违约方的责任。

    排除“突然终止合同”的情况

    法律制度规定了两种情况，而判例法似乎还规定了其他情况。

    (a) 两个法律例外分别是不可抗力（很少被法院神圣化）和遭受终止的受害者的过失，判例法补充说，这必须是对合同承诺或法律规定（如不尊重排他性、竞业禁止、保密或变更控制责任，或未按合同规定支付到期金额）的严重违反。

    当然，法官们认为自己不受界定什么构成严重不当行为的终止条款的约束。在任何情况下，因严重不当行为而终止协议的一方必须在终止协议书中明确通知对方。最重要的是，严重的不当行为会导致通知的缺少，因此，如果终止方指控严重的不当行为，但给予通知，无论是哪种情况下，法官都可能会得出结论，认为该过失不够严重。

    (b)  近年来，判例法增加了其他免责的案例。在这种情况下，破裂是由当事方以外的原因造成的，如经济危机，上游或下游自身客户或供应商的损失。

    无论其期限是什么，法官们还排除了定期合同第一个期限结束的假设中的“突然终止”：合同的首次续签对合同破裂的受害者构成可预见的事件，这就排除了残暴的概念；但一旦合同至少续签了一次，法官随后就可以描述受害者对新的默认续签的合法信念。

    “突然终止”的赔偿

    法官只赔偿暴力行为本身的破坏性后果，但至少在第L442-1.II条的范围内，不赔偿违约行为本身的后果。

    基本规则非常简单：必须确定应授予的通知的期限，从中减去实际授予的通知期限。该净通知时间乘以受害人的平均每月毛利率，或在更通常的情况下，是乘以可变成本的利润，不包括因不履行合同/关系而消失的成本。被告应毫不犹豫地索要完整的会计证据，尤其是确定（较低的）利率，甚至要求就这些会计要素提供司法专业知识。通常，平均每月利润的基数包括最近24或36个月。

    通常，以平均保证金计算的补偿不包括任何其他补偿。但是，受害人可以证明其由于关系破裂的残酷性而遭受了其他损失。例如由于这种野蛮行为直接导致的被解雇或受害者最近进行的投资贬值。

    在预测“突然终止”时的一些实用技巧

    即使法律制度仍然模棱两可，判例法极其苛刻，无法发布强有力的指导方针，但在公司计划终止一段关系/合同时，以下是一些实用建议：

    • 如果定期合同可以默认续签，不续签通知必须在合同通知开始之前提前较长时间发出，以避免出现必须在不续签合同与不充分的通知之间作出选择或同意在新的期限内续签合同的情况;
    • 当商业团队过于激进地改变商业关系/合同的执行条件时，必须让他们意识到部分突然终止的风险；
    • 在某些情况下，发送一份带有“通知建议”的提前终止通知可能有帮助，以便尝试与另一方确认该通知；
    • 在某些关系中，根据产品线的性质，以不同的通知期限来通知关系的结束也是有用的；
    • 最后，最好的方法是缔结关系终止协议，确定通知的期限，并在必要时规定订单的逐步递减，这在和解协议的框架内是完整的，该协议最终将放弃任何索赔 ，包括“突然终止”。

    在进入关系期限的最后阶段时，应考虑“突然终止”制度：必须仔细规划合同（或事实上的关系）终止的方式，以便掌控给对方造成损害和被起诉要求赔偿的风险。

    QUICK SUMMARY: Contract negotiations do not take place in a legal vacuum. A party who negotiates contrary to the principle of good faith and then breaks off negotiations may become liable to the other party. However, the requirements for such liability are high and the enforcement of damage claims is cumbersome. At the end of the post I will share some practical tips for contract negotiations in Switzerland.

    Under Swiss law, the principle of freedom of contract is of fundamental importance. It follows from the freedom of contract that, in principle, everyone is free to enter into contract negotiations and to terminate them again without incurring any liability. A termination of contract negotiations does not have to be justified either.

    However, the freedom of contract is limited by the obligation to act in good faith (cf. article 2 para. 1 of the Swiss Civil Code), which is of equal fundamental importance. From the moment when parties enter into contract negotiations, they are in a special legal relationship with each other. That pre-contractual relationship involves certain reciprocal obligations. In particular, the parties must negotiate in a serious manner and in accordance with their actual intentions.

    Negotiating parties must not stir up the hope of the other party, contrary to their actual intentions, that a contract will actually be concluded. Put differently, a party’s willingness to conclude a contract must not be expressed more strongly than it actually is. If a party realizes that the other party wrongly beliefs that a contract would certainly be concluded, such illusion should be dispelled in due course.

    A negotiating party that terminates contract negotiations in violation of these principles, whether maliciously or negligently, may become liable to the other party based on the culpa in contrahendo doctrine. However, such liability exists in exceptional cases only.

    • The fact that contract negotiations took a long time is not sufficient for incurring such liability. The duration of negotiations is, in itself, not decisive.
    • It is not possible to derive liability from pre-existing contractual relationships between the negotiation parties, as for example in cases where parties negotiate a “mere” prolongation of an existing agreement. The decisive factor is not whether parties were already contractually bound before, but only whether the party that terminated the contract negotiations made the other party believe that a new agreement would certainly be concluded.
    • It is not decisive whether the party who terminates contract negotiations knows that the other party has already made costly investments in view of the prospective contract. In principle, anyone who makes investments already prior to the actual conclusion of a contract does so at its own risk. Even where a party to contract negotiations knows that the other party has already made (substantial) investments in the prospective agreement, a termination of the contract negotiations will, in itself, not be considered as an act of bad faith.

    What does a liability for breaking off negotiations include?

    If a party violates the aforementioned pre-contractual obligations, the other party may be entitled to compensation for the so-called negative interest. This means that the other party must be put in the position it would have been if the negotiations had not taken place. Damages may include, e.g., expenses in connection with the negotiation of the contract (travel costs, legal fees etc.), but also a loss of income in cases where a party was not able to do business with third parties because of the contract negotiations. However, the other party has no right to be treated as if the contract had been concluded (so-called positive interest).

    Having said that, it must be kept in mind that the requirements set by Swiss court for the substantiation of damages are rather high, so that the enforcement of a liability for breaking off negotiations will often be a cumbersome process. Therefore pursuing damage claims with relatively low amounts in dispute might often require a disproportionate effort.

    Practical tips – Do’s and don’ts when negotiating contracts

    • Do not overstate your willingness to conclude a contract. Be frank with your counterparty. Make it clear from the beginning of the negotiations what clauses are important to you.
    • Do not tell the other party that you are willing to sign a contract, if you still have doubts or you are even unwilling to do so. Confirm that you will sign only if you are convinced to do so.
    • Do not allow someone else (e.g., a representative, employee, branch office etc.) to negotiate on your behalf if you are not willing to enter into an agreement anyway. Keep an eye on how the negotiations are going on and intervene if necessary.
    • Do not make costly investments before a legally binding agreement is concluded. If, for time or other reasons, such investments are necessary already before the conclusion of an agreement, insist on the conclusion of an interim contract governing such investments for the event that the envisaged agreement is not concluded finally.

    In 2020, an important revision of the Swiss statute of limitations enters into force. The new law provides for longer limitation periods in cases of personal injury and extends the relative limitation periods in tort and unjust enrichment law from one to three years.

    Background of the revision

    In June 2018, the Swiss parliament adopted an amendment to the Swiss Code of Obligations (“CO”) pertaining to a revision of the statute of limitations. In November 2018, the Swiss government decided that the revised statute of limitations shall enter into force on 1 January 2020.

    The revision was significantly influenced by asbestos cases. Under the current law, damage claims of asbestos victims were time-barred in some cases even before asbestos-related diseases could be diagnosed. In March 2014, the European Court of Human Rights held in Howald Moor and others v. Switzerland that the Swiss statute of limitations amounts in such cases to a violation of article 6 paragraph 1 of the European Convention on Human Rights (right of access to a court).

    Having said that, the revision does not only concern cases of personal injury, but also includes numerous other important changes as described in the following.

    Key changes regarding limitation periods

    A. Tort law

    In tort law, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable (revised Art. 60 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

    With the exception of cases of personal injury, the absolute limitation period remains ten years as from the date when the conduct that caused the damages occurred or ended (revised Art. 60 para. 1 CO).

    In cases of personal injury, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable. Currently the relative limitation period amounts to one year only.

    The new absolute limitation period in cases of personal injury amounts to twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 60 para. 1bis CO). Under the current law, there was no special absolute limitation period for cases of personal injury, so that the ordinary 10-year period applied (Art. 60 para. 1 CO).

    If conduct, which gives rise to liability under tort law, is also punishable under criminal law, the (longer) limitation period under criminal law remains applicable (cf. Art. 97 of the Swiss Criminal Code). However, where a first-instance criminal judgment is rendered before the conduct is time-barred under criminal law, the limitation periods ends not earlier than three years as from that criminal judgment (revised Art. 60 para. 2 CO). The current law does not provide for such an additional three-year limitation period.

    B. Unjust enrichment law

    In unjust enrichment law, the new relative limitation period amounts to three years as from the date on which the injured party knows about the claim (revised Art. 67 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

    The absolute limitation period is not affected by the revision and remains ten years after the date on which the claim arises (revised Art. 67 para. 1 CO).

    C. Contract law

    With regard to contractual claims, the ordinary limitation period remains ten years from the due date (Art. 127 CO). Furthermore, the shorter limitation period of five years from the due date applicable to (amongst others) claims for rent, interest on capital and other periodic payments, (most) claims out of employment relationships etc. remains unchanged too (Art. 128 CO).

    However, in cases of personal injury, the revised statute of limitations introduces a new relative limitation period of three years from the date on which the injured party became aware of the damage, as well as a new absolute limitation period of twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 128a CO). The current law does not provide for distinct relative and absolute limitation periods for contractual claims in cases of personal injury. Instead, the ordinary ten-year limitation period (Art. 127 CO) usually applied to such cases.

    D. Summary

    In summary, the most important elements of the revised statute of limitations are the longer (trebled) relative limitation periods in tort and unjust enrichment law (i.e., three years instead of one year) and the new special rules for cases of personal injury, which now benefit from a 20-year absolute limitation period.

    Transitional provisions / application of the revised statute of limitations to pre-existing claims

    The longer limitation periods under the revised CO apply to any claims that are not yet time-barred when the revision enters into force (i.e., on 1 January 2020; revised Art. 49 para. 1, Final Title of the Swiss Civil Code). In other words, the limitation periods of any claims that do not become time-barred until 31 December 2019 at the latest will be prolonged. This is of particular relevance with regard to claims based on tort and unjust enrichment; the short one-year relative limitation periods under the current law will be extended by another two years.

    In contrast, the current law remains applicable in case the revised statute of limitations provides for shorter limitation periods (revised Art. 49 para. 2, Final Title of the Swiss Civil Code). This concerns, in particular, contractual claims in cases of personal injury. The new three-year relative limitation period under the revised law might not apply to such claims, as the current statute of limitations does not provide for a relative limitation period at all.

    Further changes brought by the revision

    In addition to the changes of the limitation periods set out above, the revision of the statute of limitations contains numerous further modifications. Some of them are listed in the following:

    1. Limitation periods do not commence or are suspended in the event that a claim cannot be asserted for objective reasons before any court worldwide (revised Art. 134 para. 1 no. 6 CO). The current law provides for such non-commencement or suspension only if the claim cannot be brought before a Swiss court.
    2. Parties to a dispute may agree in writing that limitation periods shall be suspended during settlement discussions, mediation proceedings or other out-of-court settlement proceedings (revised Art. 134 para. 1 no. 8 CO).
    3. Once a limitation period has commenced to run, waivers of statute of limitation defenses are admissible, but must not exceed ten years (revised Art. 141 para. 1 CO). Any such waivers must be in writing (new Art. 141 para. 1bis CO).
    4. In general terms and conditions (“GTC”), statute of limitation defenses may be waived by the party who makes use of the GTCs only. In contrast, a waiver by the party on whom the GTCs are imposed (e.g., consumers) is ineffective (new Art. 141 para. 1bis CO).
    5. The limitation period for an actio pauliana under the Swiss Debt Enforcement and Bankruptcy Act (“DEBA”) is extended to from currently two years to three years after service of a loss certificate, the opening of bankruptcy proceedings or the confirmation of a composition agreement with an assignment of assets (whichever is applicable; revised Art. 292 DEBA).

    If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.

    Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.

    In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.

    Europe

    Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.

    Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.

    Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.

    Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.

    Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.

    However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.

    Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?

    If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.

    An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.

    The race to regulating DLT in Europe

    Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.

    EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.

    Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.

    In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.

    France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.

    Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.

    Conclusions

    To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.

    To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.

    The author of this post is Alessandro Mazzi.

    Christophe Hery

    业务领域

    • 代理中介
    • 反垄断
    • 仲裁
    • 分销协议
    • 电子商务
    联系方式 Christophe

    写信给 Christophe





      阅读 Legalmondo 的隐私政策
      This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

      Switzerland – Liability for termination of contract negotiations

      2019年12月23日

      • 瑞士
      • 契约

      This week the Interim Injunction Judge of the Netherlands Commercial Court ruled in summary proceedings, following a video hearing, in a case on a EUR 169 million transaction where the plaintiff argued that the final transaction had been concluded and the defendant should proceed with the deal.

      This in an – intended – transaction where the letter of intent stipulates that a EUR 30 million break fee is due when no final agreement is signed.

      In addition to ruling on this question of construction of an agreement under Dutch law, the judge also had to rule on the break fee if no agreement was concluded and whether it should be amended or reduced because of the current Coronavirus / Covid-19 crisis.

      English Language proceedings in a Dutch state court, the Netherlands Commercial Court (NCC)

      The case is not just interesting because of the way contract formation is construed under Dutch law and application of concepts of force majeure, unforeseen circumstances and amendment of agreements under the concepts of reasonableness and fairness as well as mitigation of contractual penalties, but also interesting because it was ruled on by a judge of the English language chamber of the Netherlands Commercial Court (NCC).

      This new (2019) Dutch state court offers a relatively fast and cost-effective alternative for international commercial litigation, and in particular arbitration, in a neutral jurisdiction with professional judges selected for both their experience in international disputes and their command of English.

      The dispute regarding the construction of an M&A agreement under Dutch law in an international setting

      The facts are straightforward. Parties (located in New York, USA and the Netherlands) dispute whether final agreement on the EUR 169 million transaction has been reached but do agree a break fee of €30 million in case of non-signature of the final agreement was agreed. However, in addition to claiming there is no final agreement, the defendant also argues that the break fee – due when there is no final agreement – should be reduced or changed due to the coronavirus crisis.

      As to contract formation it must be noted that Dutch law allows broad leeway on how to communicate what may or may not be an offer or acceptance. The standard is what a reasonable person in the same circumstances would have understood their communications to mean.  Here, the critical fact is that the defendant did not sign the so-called “Transaction Agreement”. The letter of intent’s binary mechanism (either execute and deliver the paperwork for the Transaction Agreement by the agreed date or pay a EUR 30 million fee) may not have been an absolute requirement for contract formation (under Dutch law) but has significant evidentiary weight. In M&A practice – also under Dutch law – with which these parties are thoroughly familiar with, this sets a very high bar for  concluding a contract was agreed other than by explicit written agreement. So, parties may generally comfortably rely on what they have agreed on in writing with the assistance of their advisors.

      The communications relied on by claimant in this case did not clear the very high bar to assume that despite the mechanism of the letter of intent and the lack of a signed Transaction Agreement there still was a binding agreement. In particular attributing the other party’s advisers’ statements and/or conduct to the contracting party they represent did not work for the claimant in this case as per the verdict nothing suggested that the advisers would be handling everything, including entering into the agreement.

      Court order for actual performance of a – deemed – agreement on an M&A deal?

      The Interim Injunction Judge finds that there is not a sufficient likelihood of success on the merits so as to justify an interim measure ordering the defendant to actually perform its obligations under the disputed Transaction Agreement (payment of EUR 169 million and take the claimant’s 50% stake in an equestrian show-jumping business).

      Enforcement of the break fee despite “Coronavirus”?

      Failing the conclusion of an agreement, there was still another question to answer as the letter of intent mechanism re the break fee as such was not disputed. Should the Court enforce the full EUR 30 million fee in the current COVID-19 circumstances? Or should the fee’s effects be modified, mitigated or reduced in some way, or  the fee agreement should even be dissolved?

      Unforeseen circumstances, reasonableness and fairness

      The Interim Injunction Judge rules that the coronavirus crisis may be an unforeseen circumstance, but it is not of such a nature that, according to standards of reasonableness and fairness, the plaintiff cannot expect the break fee obligation to remain unchanged. The purpose of the break fee is to encourage parties to enter into the transaction and attribute / share risks between them. As such the fee limits the exposure of the parties. Payment of the fee is a quick way out of the obligation to pay the purchase price of EUR 169 million and the risks of keeping the target company financially afloat. If financially the coronavirus crisis turns out less disastrous than expected, the fee of EUR 30 million may seem high, but that is what the parties already considered reasonable when they waived their right to invoke the unreasonableness of the fee. The claim for payment of the EUR 30 million break fee is therefore upheld by the Interim Injunction Judge.

      Applicable law and the actual practice of it by the courts

      The relevant three articles are in this case articles 6:94, 6:248 and 6:258 of the Dutch Civil Code. They relate to the mitigation of contractual penalties, unforeseen circumstances and amendment of the agreement under the tenets of reasonableness and fairness. Under Dutch law the courts must with all three exercise caution. Contracts must generally be enforced as agreed. The parties’ autonomy is deemed paramount and the courts’ attitude is deferential. All three articles use language stating, essentially, that interference by the courts in the contract’s operation is allowed only to avoid an “unacceptable” impact, as assessed under standards of reasonableness and fairness.

      There is at this moment of course no well- established case law on COVID-19. However, commentators have provided guidance that is very helpful to think through the issues. Recently a “share the pain” approach has been advocated by a renowned law Professor, Tjittes, who focuses on preserving the parties’ contractual equilibrium in the current circumstances. This is, in the Court’s analysis, the right way to look at the agreement here. There is no evidence in the record suggesting that the parties contemplated or discussed the full and exceptional impact of the COVID-19 crisis. The crisis may or may not be unprovided for.  However, the court rules in the current case there is no need to rule on this issue. Even if the crisis is unprovided for, there is no support in the record for the proposition that the crisis makes it unacceptable for the claimant to demand strict performance by the defendant. The reasons are straightforward.

      The break fee allocates risk and expresses commitment and caps exposure. The harm to the business may be substantial and structural, or it may be short-term and minimal. Either way, the best “share the pain” solution, to preserve the contractual equilibrium in the agreement, is for the defendant to pay the fee as written in the letter of intent. This allocates a defined risk to one party, and actual or potential risks to the other party. Reducing the break fee in any business downturn, the fee’s express purpose – comfort and confidence to get the deal done – would not be accomplished and be derived in precisely the circumstances in which it should be robust. As a result, the Court therefore orders to pay the full EUR 30 million fee. So the break fee stipulation works under the circumstances without mitigation because of the Corona outbreak.

      The Netherlands Commercial Court, continued

      As already indicated above, the case is interesting because the verdict has been rendered by a Dutch state court in English and the proceedings where also in English. Not because of a special privilege granted in a specific case but based on an agreement between parties with a proper choice of forum clause for this court. In addition to the benefit to of having an English forum without mandatorily relying on either arbitration or choosing an anglophone court, it also has the benefit of it being a state court with the application of the regular Dutch civil procedure law, which is well known by it’s practitioners and reduces the risk of surprises of a procedural nature.  As it is as such also a “normal” state court, there is the right to appeal and particularly effective under Dutch law access to expedited proceeding as was also the case in the example referred to above. This means a regular procedure with full application of all evidentiary rules may still follow, overturning or confirming this preliminary verdict in summary proceedings.

      Novel technology in proceedings

      Another first or at least a novel application is that all submissions were made in eNCC, a document upload procedure for the NCC. Where the introduction of electronic communication and litigation in the Dutch court system has failed spectacularly, the innovations are now all following in quick order and quite effective. As a consequence of the Coronavirus outbreak several steps have been quickly tried in practice and thereafter formally set up. At present this – finally – includes a secure email-correspondence system between attorneys and the courts.

      And, also by special order of the Court in this present case, given the current COVID-19 restrictions the matter was dealt with at a public videoconference hearing on 22 April 2020 and the case was set for judgment on 29 April 2020 and published on 30 April 2020.

      Even though it is a novel application, it is highly likely that similar arrangements will continue even after expiry of current emergency measures. In several Dutch courts videoconference hearings are applied on a voluntary basis and is expected that the arrangements will be formalized.

      Eligibility of cases for the Netherlands Commercial Court

      Of more general interest are the requirements for matters that may be submitted to NCC:

      • the Amsterdam District Court or Amsterdam Court of Appeal has jurisdiction
      • the parties have expressly agreed in writing that proceedings will be in English before the NCC (the ‘NCC agreement’)
      • the action is a civil or commercial matter within the parties’ autonomy
      • the matter concerns an international dispute.

      The NCC agreement can be recorded in a clause, either before or after the dispute arises. The Court even recommends specific wording:

      “All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”).”

      The phrase “to the exclusion of the jurisdiction of any other courts” is included in light of the Hague Convention on Choice of Court Agreements. It is not mandatory to include it of course and parties may decide not to exclude the jurisdiction of other courts or make other arrangements they consider appropriate. The only requirement being that such arrangements comply with the rules of jurisdiction and contract. Please note that choice of court agreements are exclusive unless the parties have “expressly provided” or “agreed” otherwise (as per the Hague Convention and Recast Brussels I Regulation).

      Parties in a pending case before another Dutch court or chamber may request that their case be referred to NCC District Court or NCC Court of Appeal. One of the requirements is to agree on a clause that takes the case to the NCC and makes English the language of the proceedings. The NCC recommends using this language:

      We hereby agree that all disputes in connection with the case [name parties], which is currently pending at the *** District Court (case number ***), will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or ”NCC District Court). Any action for interim measures, including protective measures, available under Dutch law will be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCC Court of Appeal”).

      To request a referral, a motion must be made before the other chamber or court where the action is pending, stating the request and contesting jurisdiction (if the case is not in Amsterdam) on the basis of a choice-of-court agreement (see before).

      Additional arrangements in the proceedings before the Netherlands Commercial Court

      Before or during the proceedings, parties can also agree special arrangements in a customized NCC clause or in another appropriate manner. Such arrangements may include matters such as the following:

      • the law applicable to the substantive dispute
      • the appointment of a court reporter for preparing records of hearings and the costs of preparing those records
      • an agreement on evidence that departs from the general rules
      • the disclosure of confidential documents
      • the submission of a written witness statement prior to the witness examination
      • the manner of taking witness testimony
      • the costs of the proceedings.

      Visiting lawyers and typical course of the procedure

      All acts of process are in principle carried out by a member of the Dutch Bar. Member of the Bar in an EU or EEA Member State or Switzerland may work in accordance with Article 16e of the Advocates Act (in conjunction with a member of the Dutch Bar). Other visiting lawyers may be allowed to speak at any hearing.

      The proceedings will typically follow the below steps:

      • Submitting the initiating document by the plaintiff (summons or request as per Dutch law)
      • Assigned to three judges and a senior law clerk.
      • The defendant submits its defence statement.
      • Case management conference or motion hearing (e.g. also in respect of preliminary issues such as competence, applicable law etc.) where parties may present their arguments.
      • Judgment on motions: the court rules on the motions. Testimony, expert appointment, either at this stage or earlier or later.
      • The court may allow the parties to submit further written statements.
      • Hearing: the court interviews the parties and allows them to present their arguments. The court may enquire whether the dispute could be resolved amicably and, where appropriate, assist the parties in a settlement process. If appropriate, the court may discuss with the parties whether it would be advisable to submit part or all of the dispute to a mediator. At the end of the hearing, the court will discuss with the parties what the next steps should be.
      • Verdict: this may be a final judgment on the claims or an interim judgment ordering one or more parties to produce evidence, allowing the parties to submit written submissions on certain aspects of the case, appointing one or more experts or taking other steps.

      Continuous updates, online resources Netherlands Commercial Court

      As a final note the English language website of the Netherlands Commercial Court provides ample information on procedure and practical issues and is updated with a high frequence. Under current circumstance even at a higher pace. In particular for practitioners it’s recommended to regularly consult the website. https://www.rechtspraak.nl/English/NCC/Pages/default.aspx

      This is a summary of the approved measures, which unfortunately for both tenants and landlords do not include any public aid or tax relief and just refer to a postponement in the payment of the rent.

      Premises to which they are applied

      Leased premises dedicated to activities different than residential: commercial, professional, industrial, cultural, teaching, amusement, healthcare, etc. They also apply to the lease of a whole industry (i.e. hotels, restaurants, bars, etc., which are the most usual type of businesses object of this deal).

      Types of tenants

      • Individual entrepreneurs or self-employed persons who were registered before Social Security before the declaration of the state of alarm on March 14th, 2020
      • Small and medium companies, as defined by article 257.1 of the Capital Companies Act: those who fulfil during two consecutive fiscal years these figures: assets under € 4 million, turnover under € 8 million and average staff under 50 people

      Types of landlords

      In order to benefit from these measures, the landlord should be a housing public entity or company or a big owner, considering as such the individuals or companies who own more than 10 urban properties (excluding parking places and storage rooms) or a built surface over 1.500 sqm.

      Measures approved

      The payment of the rent is postponed without interest meanwhile the state of alarm is in force, but in any case, for a maximum period of four months. Once the state of alarm is overcome, and in any case in a maximum term of four months, the postponed rents should be paid along a maximum period of two years, or the duration of the lease agreement, should it be less than two years.

      For landlords different to those mentioned above

      The tenant could apply before the landlord for the postponement in the payment of the rent (but the landlord is not obliged to accept it), and the parties can use the guarantee that the tenant should mandatorily have provided at the beginning of any lease agreement (usually equal to two month’s rent, but could be more if agreed by the parties), in full or in part, in order to use it to pay the rent. The tenant will have to provide again the guarantee within one year’s term, or less should the lease agreement have a shorter duration.

      Activities to which it is applied

      Activities which have been suspended according to the Royal Decree that declared the state of alarm, dated march, 14ht, 2020, or according to the orders issued by the authorities delegated by such Royal Decree. This should be proved through a certificated issued by the tax authorities.

      If the activity has not been directly suspended by the Royal Decree, the turnover during the month prior to the postponement should be less than 75% of the average monthly turnover during the same quarter last year. This should be proved through a responsible declaration by the tenant, and the landlord is authorised check the bookkeeping records.

      Term to apply and procedure

      The tenant should apply for these measures before the landlord within one month’s term from the publication of the Royal Decree-law, that is, from April 22nd, 2020, and the landlord (in case belongs to the groups mentioned in point c) is obliged to accept the tenant’s request, except if both parties have already agreed something different. The postponement would be applied to the following month.

      As the state of alarm was declared more than one month ago (March 14th), landlords and tenants have already been reaching some agreements, for example 50% rent reduction during the state of alarm, and 50% rent postponement during the following 6 months. Tenants who do not reach an agreement with the landlord could face an eviction procedure, however court procedures are suspended during the state of alarm. We have also seen some abusive non-payment of rent by tenants.

      When is becomes impossible to reach an agreement with the landlord, tenants have the legal remedy of claiming in Court for the application of the “rebus sic stantibus” principle, which was highly demanded during the 2008 financial crisis but very seldom applied by the Courts. This principle is aimed to re-balance the parties’ obligations when their situation had deeply changed because of unforeseen circumstances beyond their control. This principle is not included in the Spanish Civil Code, but the Supreme Court has accepted its application, in a very restricted way, in some occasions.

      Summary – What can we learn in the time of Covid-19 that can be used in mediation? And what can we learn from mediation to be used in this crisis?

      As you know, mediation is a way to solve conflicts in which the parties keep in their hands the possible solution. They do not need to come to a third party (judge or arbitrator) to impose the answer to them. Parties can imagine more freely what they need, and how to solve their differences.

      Some of the elements and techniques mediators use in a mediation can also be used in and learnt from the current Time of Covid-19. And the current crisis also helps us to understand why they are so important in mediation.

      Cooperation to get the solution is better than unilateral and imposed decisions

      We usually tend to think that cooperation is a sign of weakness and that we recur to it only if we cannot impose or view or win our case. However, as in the time of Covid-19 where countries, scientists and people should fight together, when facing a conflict cooperation and going beyond your positions brings you the possibility to explore solutions that otherwise remain hidden.

      « Now it is increasingly recognized that there are cooperative ways of negotiating our differences and that even if a “win-win” solution cannot be found, a wise agreement can still often be reached that is better for both sides than the alternative. […]

      Three points about shared interests are worth remembering. First, shared interests lie latent in every negotiation. They may not be immediately obvious. Second, shared interests are opportunities, not godsends. Third, stressing your shared interests can make the negotiation smoother and more amicable. » [Fisher, Richard; Ury, William. “Getting to Yes: Negotiating an agreement without giving in”].

      Listening is highly effective

      In the time of Covid-19 we tend to accept better information that confirms our beliefs and we accept better indications that are in accordance with our preferences and beliefs. Nevertheless, also in this time, listening is of essential importance to understand the causes and solutions.

      A mediator will always listen to the parties and will help them to do the same. Listening the other’s side arguments, its explanation of the facts, interests and needs, the reasons for its decisions… is also of utmost importance to find a joint solution.

      «Whether you are a neutral third party (professional facilitator, friend, or manager) or one of the participants, as you listen to all the stories, you begin to sense the best solution. » [Levine, Stewart. “Getting to Resolution: Turning Conflict Into Collaboration.”]

      A solution for me can also be a solution for you

      In the time of Covid-19 it seems clear to all of us that a common solution is the only possible one. A vaccine will save the entire world. In mediation, the main benefit is to understand that, unlike a court judgement or arbitral award, a joint (not imposed) solution is possible and a benefit for me does not imply a damage or a lost for my opponent.

      «A mediator works to understand each disputant’s perspective and to look for the value in it. In this role, you refrain from judging whose side is right or wrong. Instead, you try to see the merit in each side’s perspective. » [Shapiro, Daniel. “Building Agreement”].

      We master the solution and we create the agreement in a safe environment

      The solution to the current crisis does not only depend on the authorities and on the health professionals. A great part of the solution relies on everybody’s participation, washing our hands, respecting the social distance, staying safe at home avoiding contagion and the collapse of hospitals.

      In court we leave the decision of the conflict in the hands of a third party –the judge, the arbitrator­–. In a mediation, on the contrary, the solution remains in our hands. We know what our interests are, we create our agreement. Our imagination is our ally in finding the solution together with the counterparty and the assistance and experience of the mediator who does not impose it but helps the parties to find it. Quite often, what parties could get in mediation goes far beyond what a judge would’ve been able to grant. And this in a confidential environment.

      «The Sage is self-effacing and scanty of words. When his task is accomplished and things have been completed, all the people say, “We ourselves have achieved it!” » [Lao Tzu]

      Emotions do matter

      Good and bad emotions are inevitable. Particularly in periods of uncertainty, crisis and loose of control, we all face strong emotions. This is true in situations like this Covid-19 and in all conflicts, and not only in personal ones. Egos, envies, fears, anxieties… are also part of our day-to-day life, work and business, but they are rarely considered in courts when solving your conflicts. A mediator helps you to take them into account in a safe environment and as a part of the conflict itself.

      «Solving problems seems easier than talking about emotions. The problem is that when feelings are at the heart of what’s going on, they are the business at hand and ignoring them is nearly impossible. » [Stone, Douglas. “Difficult Conversations: How to Discuss What Matters Most”].

      Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19, even though it affects and produces effects in many different legal fields, does not include any reference to contracts for leases of real estate, or houses, premises or offices.

      The purpose of this note is to analyze the effects of the situation of the State of Alarm regarding those leases of offices or premises that have been forced to close in application of the decree; those others that remain totally or partially open and in operation, although with a reduced or minimal activity, in principle are not subject to the conclusions reached below without prejudice to the fact that there are individualized cases to which, despite the fact that there is not a complete closure, reasonably and logically can be applied to them.

      It is not excluded in any way that in the event of an extension of the validity of the State of Alarm, a regulation that affects the leasing contracts could be published, but for the moment this has not happened. If this were to happen, the content of said norm would apply.

      Based on the principle of freedom of covenants enshrined in art. 1255 of the Spanish Civil Code, which allows the parties signing the contract to agree (i) what scenarios and situations should be considered as constituting cases of Force Majeure and Act of God and (ii) what the contractual consequences of such scenarios should be, the first exercise that must be done is to check if the contract includes a regulatory clause of Force Majeure and its effects; if so, such clause must be followed and its analysis is left out of this note.

      In the absence of express regulation in the contract, the provisions of the Civil Code and specifically article 1105 would apply.

      COVID-19 as Force Majeure

      COVID-19 is an event that in principle meets the requirements of the Civil Code to be classified as an event of Force Majeure (art. 1105 Civil Code) since:

      • It is a foreign act and not attributable to the contractor who is the debtor of the benefit or obligation.
      • It is unpredictable, or if it were said to be “predictable”, it is certainly inevitable.
      • The event in question, the pandemic, must be a cause and result in the breach of the obligation, that is, there must be a causal link.

      Therefore, fulfilling the three requirements, the first conclusion that we reach is that very foreseeably, the Spanish Courts will classify as “Force Majeure” the situation caused by COVID 19 when a judicial dispute is raised in which such matter is discussed between litigants. We will now analyze the consequences of this status.

      Consequences of considering COVID-19 as an event of Force Majeure

      Most of the doctrine and jurisprudence understand that the effects of classifying a scenario as a case of Force Majeure in principle are:

      • Total and definitive impossibility of complying; releasing the debtor from the fulfillment of the obligation.
      • Partial inability to comply; the debtor is released only in the part that it is impossible to fulfill, but still bound by the part that can be carried out.
      • Temporary inability to comply; the debtor is released from the responsibility for default as long as the exceptional situation persists.

      Now, let us analyze how it would affect to considerate the epidemic as Force Majeure in relation to lease agreements for uses other than housing.

      Regarding the payment of rent

      The question to answer is if the classification of the current pandemic situation as a case of Force Majeure frees the tenant (whose premises have been forced to close by order of the government authority) from the obligation to pay the rent while said closing obligation persists, including in the concept of “release” different alternatives: total or partial cancellation and / or total or partial postponement.

      We are meeting these days with a frequent reaction among some tenants, who, unilaterally have informed their landlords that considering COVID 19 an event of force majeure and having been forced to close the premises / office, they suspend the payment of the rent while said situation remains. They do not terminate the contract, they do not hand over the possession, they remain in it (the premises remain closed and not operational) but they suspend the payment (it is not clear whether suspending in this case means liberating himself from the payment of the rent or postponing its payment for when the Force Majeure scenario ends).

      Arguments against liberation

      As much as this attitude can be considered “understandable” from the perspective of the lessee, not from the point of view of the lessor, said consideration runs into an obstacle: the interpretation of the Force Majeure made by the Supreme Court regarding pecuniary payment obligations, according to the Civil Sentence of May 19, 2015:

      “Not being able to consider, in the case of pecuniary debts, the subjective impossibility – insolvency – nor the objective or formal imposition, the doctrine concludes that it is not possible to imagine that if the impossibility is due to a fortuitous event it could have as effect the extinction of the obligation.

      The exoneration of the debtor by fortuitous event is not absolute, it has exceptions, as provided for in article 1105 CC, and one of them, by application of the “genus nunquam perit” principle, would be in cases of obligations to deliver generic things.

      In such circumstances, the pecuniary debtor is obliged to fulfill the main obligation, without the economic adversities freeing him from it, since what is owed is not something individualized that has perished, but something generic such as money”.

      In conclusion: it does not seem that this jurisprudential criterion allows to defend that the fulfillment of the pecuniary obligations is released, extinguished or that its breach is justified in cases of Force Majeure, therefore the pecuniary debtor, in this case the lessee, in application of this criterion and due to the generic condition of the money, would be obliged to fulfill his main obligation not being freed from it by the unforeseen economic adversities on the basis of Force Majeure.

      Arguments in favor of liberation: art. 1575 of the Civil Code

      Having said the foregoing, reference should be made to an article of the Civil Code that, with certainty, will be profusely cited in the upcoming judicial conflicts.

      The art. 1575, dealing with the leasing of rustic estates, recognizes the lessee’s right to the reduction of rent in the event of loss of more than half of the fruits (unless otherwise agreed) in “fortuitous, extraordinary and unforeseen cases … such as fire, war, plague, unusual flood, locust, earthquake or another equally unusual that the contractors have not been able to rationally foresee ”.

      Is this article, foreseen for rustic leases, applicable to urban leases?

      The art. 4.1 CC allows the analogical application of the rules when (i) they do not contemplate a specific assumption and (ii) they regulate a similar situation in which “identity of reason” may be appreciated.

      The Sentence of the Supreme Court from January 15, 2019, that solved a conflict of a lease of a building used as hotel, in which the tenant had sought the reduction of the rent under the clause “rebus sic stantibus” by the crisis of 2008 and had alleged in his favor the application of art. 1575, established:

      “The argumentation of the appealed judgment rejecting the claim to lower the agreed price is also not contrary to the legal criterion that follows from art. 1575 CC, which is the rule that allows the reduction of income in the leasing of productive assets that do not derive from risks of the business itself, it also requires that the loss of benefits originates from extraordinary and unforeseen fortuitous cases, something that by its own rarity could not have been foreseen by the parties, and that the loss of fruits is more than half of the fruits. In this particular case, none of these circumstances concur. The decrease in rents comes from market developments, the parties anticipated the possibility that in some years the profitability of the hotel would not be positive for the lessee and the losses alleged by NH in the operation of the Almería hotel are less than fifty per hundred, without taking into account that the overall result of his activity as manager of a hotel chain is, as the Audience considers proven in view of the consolidated management report, positive”.

      The Supreme Court does not admit the application of art. 1575, but not because it is considered not applicable to non-rustic leases, but because the Court concludes that the requirements are not fulfilled since the 2008 crisis was neither unpredictable and because the lessee’s losses do not exceed 50%.

      But, that interpretation of the Supreme Court together with the wording of art. 4.1 CC would support the claim of the lessee who has no incomes during the State of Alarm to demand a reduction in rental fee that fits the principle of proportionality.

      Regarding early termination at the request of the lessee

      However, we may find situations in which the lessee considering the current situation, decides to terminate the lease in advance, delivering the premises to the lessor.

      They are cases in which the early termination of the contract is intended, without respecting (i) or the mandatory term (ii) or the previous notice, in both cases under the hypothesis that they are thus regulated in the contract.

      In these scenarios, we understand that it may be defendable that, due to the situation of force majeure caused by COVID 19 and in application of art. 1105 of the CC, the lessee is exempt from the obligation:

      1. To respect the mandatory term of the lease
      2. To give prior notice to the lessor in case of early termination of the contract

      In both cases, the contract would be terminated with the delivery of possession of the premises, without prejudice to having to respect the other obligations set forth in the contract for termination and delivery, provided that they are not equally affected by the situation of Force Majeure.

      Our opinion is that, also in application of Article 1,105 of the CC, the thesis that the lessee would be released from any obligation to compensate damages to the lessor for said advance resolution or breach of the obligatory duration of the contract could be defendable before the Courts.

      Conclusion

      In conclusion, when the Courts decide on the effects of the current pandemic (that they will surely classify as Force Majeure), and how this will affect the obligations of leaseholders who have been forced to close their business, our opinion is the following:

      • Regarding the obligation to pay the rent, despite the contrary criterion of the sentence from May 19, 2015, we find defendable the analogue application of art. 1575 of the CC, based as well on the Supreme Court Sentence from January 15, 2019, in order to demand a proportional and equitable reduction of the rent.
      • Regarding the power of the leaseholder to terminate the contract in advance, in case the leaseholder hands the possession of the property to the lessor, we find defendable to exonerate the leaseholder from complying with the advance notice or mandatory term in case provided in the contract, without the obligation to indemnify the lessor for this reason.

      Application of the Rebus Sic Stantibus clause (“RSS” clause)

      We will analyze below if the RSS clause can be applicable to the case that we are studying and with which consequences.

      Requirements of the RSS clause (Latin aphorism that means “things thus standing”)

      The principle RSS operates as an intrinsic clause (that is, implicit, without the need to expressly agree by the parties) in the contractual relationship, which means that the stipulations established in a contract are so in view of the concurrent circumstances at the time, that is, “things thus standing”, so that any substantial and unforeseen alteration of the same could lead to the modification of the contractual content.

      The RSS clause is not regulated in any article in our laws; It is a doctrinal construction that the jurisprudence has traditionally admitted (examples among many other Supreme Court Sentences from June 30, 2014, February 24, 2015, January 15, 2019, July 18, 2019), with great caution, only in certain cases, and requiring the following requirements:

      • That there has been an extraordinary alteration in the circumstances of the contract, at the time that it must be fulfilled, in relation to those present at the time the parties entered the contract.
      • To analyze whether an incident can determine the extraordinary alteration of the circumstances that gave meaning to the contract, we must a) contrast the scope of said alteration regarding the meaning or purpose of the contract and the commutativity or performance balance thereof; and b) the “normal risk” inherent or derived from the contract must be excluded.
      • That there has been an exorbitant disproportion, out of all calculation, between the obligations of the contracting parties, causing an imbalance between them.
      • That the above occurs because of radically unpredictable circumstances.
      • That there is no other remedy to overcome the situation.

      Historically, our courts have been very reluctant to apply RSS, although since the economic crisis of 2008-2012 there has been a certain change in criteria and greater jurisprudential receptivity.

      Consequences of the application of RSS

      The doctrine establishes that the application of the RSS does not have in principle terminating effects on the contract, but only modifying effects, aimed at compensating the imbalance of obligations between the parties;  the doctrine establishes that this only applies to long-term contracts or successive contracts with deferred execution.

      In application of the good faith principle, the reaction to an event of fortuitous event, force majeure or, in general, an event that generates a disproportion between the parties, such as that regulated by the RSS clause, should be the amendment of the contract to rebalance the obligations between the parties, and only in the event of material impossibility to comply with the obligations, the resolution of the obligation, in both cases without compensation for non-compliance.

      For this reason, in relation to leasing contracts and in case of closure of the premises by mandatory mandate, we understand that the RSS clause may be:

      • alleged by the leaseholder to request or urge the lessor to downsize or postpone payment.
      • estimated by the judges, when these assumptions are debated before the Courts, when accepting such contractual amendment as equitable and legitimate in order to compensate the imbalance generated by the effects of COVID 19.

      To summarize, the RSS clause can be a tool for the leaseholder that has had to close its premises during the State of Alarm, when negotiating with the lessor an amendment of the contract, trying to postpone the rent while the State of Alarm or negotiating a discount.

      We should bear in mind:

      • That the RSS clause is unavoidably applicable on a casuistic basis, there are no generalizations and it will be necessary to take into account the effect caused by COVID 19 in each specific contractual relationship (Supreme Court Sentence from June 30, 2014 and February 24, 2015) and the real imbalance of benefits produced, and
      • That, as we have said, the Courts are generally reluctant to apply this clause, that they only apply in the absence of any other legal tool and in situations in which the maintenance of the contractual status quo reveals a manifest “injustice ”and a evident and resounding imbalance between the performance of the parties.

      Does this mean that the leaseholder may impose on the lessor a modification of the economic conditions of the contract under the RSS clause (postponement or total or partial cancellation of the payment)?

      We cannot assure this, what we think is that the application of this RSS clause should:

      • Justify a reasonable request from the leaseholder to temporarily change the conditions of the contract (postponement or cancellation, total or partially) that the lessor must reasonably meet.
      • In case of unreasonable refusal of the lessor, we recommend to document as much as possible leaseholder´s request and the possible negotiations or refusal, in order to substantiate a suspension of the payment of the rent, total or partial, during the State of Alarm aimed, not to extinguish his obligation, but to postpone it.

      We will have to wait for the reaction of the Courts when they judge these conflicts, but if we dare to anticipate that it is quite possible that the judicial tendency will be to grant protection to the leaseholder with support in the RSS clause and the principle of business preservation, when it comes to validating certain modifying effects regarding the payment obligations of the leaseholder (total or partial remission of the rent payment during the pandemic crisis, postponement, or partial postponement).

      In any case, it will be essential to prove, that the behavior of the leaseholder seeking protection in the RSS clause to amend the contract, has been strictly adjusted to the principle of good faith (Supreme Court Sentence from April 30, 2015).

      It will also be important to analyze case by case why the displacement of the risk derived from the “exceptional and unforeseen event” from one contractor to the other is justified (Supreme Court Sentence from January 15, 2015) and could well be defended (Supreme Court Sentence from July 18, 2019) that both contracting parties must divide and assume the consequences between the two of them. The judicial decisions will vary in each specific case.

      Conclusions and Recommendations

      In conclusion, it seems that the leaseholder would have two instruments in order to try to successfully suspend or postpone the payment of the rents, the RSS clause and the principle of Force Majeure.

      In our view, the replacement of the contractual balance altered by the exceptional event, may consist of either an extension of the lease payment terms or the application of a total, or partial cancellation of the rental payment obligation while it lasts the State of Alarm, but we understand that it will be defendable that the delay in the payment may not give rise neither to the termination of the contract under art. 1124 Cc nor to the requirement of damages art. 1105 Cc, therefore, will not empower the lessor to urge eviction.

      Therefore, the steps to be followed in each case would be:

      • Carry out an examination of the contract to check whether force majeure and acts of God are regulated and if the current situation is in accordance with the contract provisions.
      • Should nothing be set forth at the contract, and in case the leaseholder has had to close the premises or office, notify the other party of this circumstance and try to negotiate a novation of the lease requesting:
        • Waiver of the payment obligation during the Alarm State.
        • The application of a discount on the payment obligations with both parties sharing the effects of the pandemic, in a proportion to be agreed.
        • Postponement of payment obligations until the premises or office can be reopened with a payment plan for the deferred debt.

      If it is not possible to reach an agreement, it is advisable to try to maintain evidence that the parties have acted in good faith trying to reach a negotiated solution and at the extreme (from the leaseholder´s point of view) announce, without waiting to receive a communication or claim from the Lessor, the suspension of the rental fee payment until reopening of the premises/offices, justifying the same in the Alarm State.

      《法国商业法》规定，贸易商在未给予充分书面通知的情况下终止书面合同或非正式商业关系(第442-1.1条)将被制裁。在过去的二十年中，这已成为商业关系或合同终止（全部或部分终止）时所有补偿行为（最高可达24个月的毛利率以及其他损害赔偿）的经常性法律依据。

      因此，与法国公司签约的外国贸易商应尽量避开该规则的管辖范围 (第一部分)，如果不能，则应理解并控制其实施 (第二部分)。

      简而言之

      外国公司如何避免或控制与法国法律规定的“突然终止商业关系”有关的风险？

      与法国公司做生意的外国公司应该这样做：

      • 与法国供应商或客户尽快达成书面（框架）协议，即使是非常简单的关系也是如此；
      • 规定一项有利于外国法院或仲裁以及外国适用法律的条款，而如果不能选择该条款，则只能服从法国法院和法律。

      外国公司如何才能掌控法国法律规定的“突然终止商业关系”的风险?

      与法国公司做生意的外国公司应该这样做：

      • 要知道，本条适用于几乎所有类型的商业关系或合同，无论是书面的还是非书面的，无论是定期的还是非定期的;
      • 检查其关系/合同是否期限足够且正常和重要，以及对方是否有合理理由相信该关系/合同会继续维持；
      • 给出终止或不续约（甚至是重大修改）的书面通知，其期限主要考虑到关系的持续时间，与合同通知的时限无关；
      • 谨慎地劝告当事方在遭遇不可抗力和严重过失的情况下，搁置“突然终止”；
      • 如果没有充分的通知，则预计赔偿金额为为每月平均毛利率与未获批准的事先通知的期限之积。

      如何避免适用法国的“突然终止”规则?

      在国际事务中，外国公司必须预见其关系是否将受到法国法律的管辖，并且在发生争议的情况下，是否将其关系提交到法国法院。

      “突然终止合同”的法律适用范围是什么?

      对于一个外国公司来说，要正确地掌握适用于“突然终止”的法国法律冲突法规则框架是相当困难的。巴黎上诉法院在2018年9月19日的裁决（RG 16/05579，DES / 娇韵诗）中隐含提及Granarolo欧盟裁决（07 14 16，N°C196 / 15），该裁决将合同资格扩展至大多数业务关系，以改善可预见性，来应对外国公司试图排除法国法律及其“突然终止”规则的行为。

      突然终止书面合同或“默认合同关系”

      根据关于合同适用法律的罗马一号法规 (EC No 593 / 2008，2008年6月17日)：

      • 如果当事各方选择了外国法律：选择外国适用法律的条款将是有效的，并将受到法国法官的尊重 (服从OMR，请参阅下文)，前提是当事各方选择的法律是明示或确定的。
      • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为它可能也是分销商/加盟商所在国的法律等，或是提供合同服务功能的当事方所在国家/地区的法律。

      突然终止“非默认合同关系”

      如果是非正式关系 (即偶尔下达订单)，法国法官将保留侵权行为资格，并将参考适用于非合同义务法律的《罗马二号条例》(第864/2007号，2007年7月11日)。

      • 如果当事各方选择了外国法律：法国法官应执行草拟的外国法选择条款，条件是该条款明确包含侵权案件。
      • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为这可能是损害发生的国家/地区的法律（无论是发生事件的地点还是造成间接后果的地点），是法国受害者遭受终止结果的总部所在地。

      “突然终止合同”是法国的一项压倒一切的强制性规定吗?

      法国法院的立场相当模糊且令人不满。 简而言之：巴黎商事法庭认为“突然终止”不是OMR，巴黎上诉法院（负责“突然终止”案件的唯一法国上诉法院）却支持OMR资格，而最高法院……对此事保持沉默。尽管罗马一号条例（或罗马二号）第9.1条缺乏严格的推理和理由，但很明显，巴黎上诉法院有司法意愿将“突然终止”归为OMR。 因此，如果向法国法院提出“突然终止”的要求，则该法国法院极有可能排除适用的外国法律，而将其替换为产生于第L 442-1. II条“突然终止”。

      因此，外国公司确保“突然终止”不会妨碍合同的终止或停止续签的唯一可能性，不仅是选择一项适用的外国法律，而且是确保将争端提交外国法官或仲裁庭。

      如何避免法国法院对“突然终止”索赔的管辖权?

      “突然终止”索赔和欧盟内部共同承包商

      欧洲法院的裁决(Granarolo, 2016年7月14日，NC196/15)区分了以下索赔:

      • 书面框架合同或默认合同关系 (仅当欧洲法院所列出的证据由国家法官确定时才存在，即相互承认的关系和承诺的限期，如排他性、特价或交货与付款条件、竞业禁止等)：根据布鲁塞尔一号重铸条例下的管辖权冲突规则，此类索赔具有合同性质；
      • 非正式关系——一种非默认的合同关系 (即不时下达的命令)：在布鲁塞尔一号重铸条例下这样的请求具有侵权性质。

      （a）谁是“突然终止”书面合约或“默契合约关系”的法官?

      • 为了外国法院的利益，管辖权条款将由法国法院执行，即使它是一个不对称的条款 (最高法院，2015年10月7日，Ebizcuss.com / 苹果销售国际)。
      • 在缺乏法院条款选择的情况下，如果以“突然终止”为基础提起诉讼的法国索赔人是服务提供者，例如分销商，代理人等，则法国法院可能具有管辖权 (请参阅欧洲法院 Corman Collins案， 19 12 13，C-9 / 12和布鲁塞尔一号重铸条例第7.1.b.2条)。

      （b）谁是“非默认合同关系”“突然终止”的法官？

      • 我们认为，法国法院可能会继续执行侵权案件中的管辖权条款，特别是明确包含侵权诉讼的条款 (最高法院，1°Ch.Civ.，2017年1月18日，n°15-26105，里维埃拉汽车/阿斯顿马丁拉贡达有限公司)。
      • 在缺乏法院条款选择权的情况下，法国法院将对“突然终止”索赔具有管辖权，所以由位于发生损害事件地点的法官（布鲁塞尔一号第7.3条）负责，而该地点是“突然终止”生效的地方……即如果法国公司是受害者，该地点就在法国。

      “突然终止”索赔和非欧盟共同承包商

      如果一名法国受害者基于非欧盟公司的“突然终止”向法国法院提出索赔，Granarolo解决方案将不在事实上适用。在非欧盟关系中，法国法官只能继续保留侵权资格。在这种情况下，法国法院可以根据损害事件发生的地点保留其管辖权。然而，即使是基于侵权的索赔，在法国也可以承认管辖权条款。

      “突然终止”索赔和仲裁

      制定一项临时条款或机构仲裁条款可能是规避法国法院管辖权的最安全解决方案。理想情况下，该条款将在法国境外确定仲裁庭的席位。根据仲裁员的胜任力原则，法国法院宣布其自身无能力仲裁，除非仲裁条款明显无效或明显不适用，无论合同或侵权理由如何 (特别参见巴黎上诉法院，2019年9月5日，n / 17/03703)。

      结论：外国公司不应公开管辖权和管辖法律问题。他们必须协商出一个安全港湾，否则，被终止的法国受害人将可能有权向法国法官提出“突然终止”的要求（请参阅下面第2部分的内容）

      如何掌握“突然终止”法律的规则?

      在法国法律适用的情况下，外国公司将面临法国商业法典L442 -1.II条对“突然终止”的制裁。 作为一项初步说明，首先必须知道，“突然终止”责任的执行是通知时间太短的结果。 因此，该方案没有制定自动补偿规则。换句话说，一旦终止的发起人发出了合理的通知，基于该通知的责任就可以被免除。

      “突然终止”的先决条件：已建立的商业关系

      所有合同均受该法律制度的约束，法规中规定了特定终止通知的合同除外，例如商业代理合同和公路分包合同的货物运输。

      首先，必须存在一种可以通过书面合同或事实上当事双方的行为所证明的关系。这种关系可以建立在一系列默认续签的合同或由多个订单实现的正常业务流程基础之上。

      第二，这种关系必须具有既定的特征。没有法律定义，但是判例法年复一年地对这一概念进行了界定，判例法已经建立了一个客观标准和一个更主观的标准。

      (a) 客观标准意味着双方之间有足够长期、经常和重要的关系。关系的持续时间是最重要的标准。这种关系必须是有规律的，也就是说，它不能被打断(太频繁或太长时间)。这种关系最终必须是有意义的，并且在数量或价值上代表双方之间的业务流。

      (b) 主观测试主要侧重于受害人在基于事实层面上认为继续的合同/关系（例如投资要求，几年内的预算等）将走向破裂的合理信念。相反，正是基于对共同的未来缺乏合理信念的结果，即当终止方多次提出招标要求时，终止方可以证明其缺乏稳定的品格 (除非这是一个诡计)。

      提前预计“突然终止”索赔

      (a) 终止可以是全部或部分的

      完全破裂是通过关系的完全终止来实现的，例如终止合同、停止买方发送订单或停止供应商记录订单。但是要处理的最复杂的情况是所谓的部分破裂，它是通过对部分影响关系但不会将其减少为零的部分进行修改而得出的 (例如：价格上涨或下跌，付款或交付条件的改变)。

      (b) 终止必须以合理的事先书面通知为准

      通知必须以书面形式通知。没有书面通知本身就是一种违约行为。通知必须清楚地反映一方当事人全部或部分断绝关系的意愿，并且必须清楚地表明这一意愿。双方必须区分正式违约通知函和随后发出的违约通知（如适用）。在通知期间内，双方必须完全遵守所有合同条件。

      在2019年改革之前，法国法律没有明确规定应遵守的事先通知的期限。如果判例法规定了若干标准，则应当指出，最重要的标准是关系的持续时间。法官还考虑到受害人所占的营业额份额、领土排他性的存在与否、产品的性质和活动的范围、受害者进行投资的重要性（特别是对于所涉关系的投资），最后是经济依赖的状态。法官们发出通知的时间长短不一。对通知的评估是逐案进行的。即使是几乎对于一段关系中的一年，也可能需要一个月的通知时间（根据关系中的其他标准进行上下调整），很难给出一个黄金法则。2019年4月24日的法令根据第l442 -1. i条把合理到期的通知期限限制为18个月。但大部分诉讼仍存在不确定性，因为只有特别长寿或特别敏感的关系，才可能导致高于18个月的通知分配时间。

      法官不受合同规定的合同通知书的约束。但是，如果违约方还违反了合同规定的终止条款和条件，则受害人可以在突然终止的侵权基础上，或违反合同义务的基础上，追究违约方的责任。

      排除“突然终止合同”的情况

      法律制度规定了两种情况，而判例法似乎还规定了其他情况。

      (a) 两个法律例外分别是不可抗力（很少被法院神圣化）和遭受终止的受害者的过失，判例法补充说，这必须是对合同承诺或法律规定（如不尊重排他性、竞业禁止、保密或变更控制责任，或未按合同规定支付到期金额）的严重违反。

      当然，法官们认为自己不受界定什么构成严重不当行为的终止条款的约束。在任何情况下，因严重不当行为而终止协议的一方必须在终止协议书中明确通知对方。最重要的是，严重的不当行为会导致通知的缺少，因此，如果终止方指控严重的不当行为，但给予通知，无论是哪种情况下，法官都可能会得出结论，认为该过失不够严重。

      (b)  近年来，判例法增加了其他免责的案例。在这种情况下，破裂是由当事方以外的原因造成的，如经济危机，上游或下游自身客户或供应商的损失。

      无论其期限是什么，法官们还排除了定期合同第一个期限结束的假设中的“突然终止”：合同的首次续签对合同破裂的受害者构成可预见的事件，这就排除了残暴的概念；但一旦合同至少续签了一次，法官随后就可以描述受害者对新的默认续签的合法信念。

      “突然终止”的赔偿

      法官只赔偿暴力行为本身的破坏性后果，但至少在第L442-1.II条的范围内，不赔偿违约行为本身的后果。

      基本规则非常简单：必须确定应授予的通知的期限，从中减去实际授予的通知期限。该净通知时间乘以受害人的平均每月毛利率，或在更通常的情况下，是乘以可变成本的利润，不包括因不履行合同/关系而消失的成本。被告应毫不犹豫地索要完整的会计证据，尤其是确定（较低的）利率，甚至要求就这些会计要素提供司法专业知识。通常，平均每月利润的基数包括最近24或36个月。

      通常，以平均保证金计算的补偿不包括任何其他补偿。但是，受害人可以证明其由于关系破裂的残酷性而遭受了其他损失。例如由于这种野蛮行为直接导致的被解雇或受害者最近进行的投资贬值。

      在预测“突然终止”时的一些实用技巧

      即使法律制度仍然模棱两可，判例法极其苛刻，无法发布强有力的指导方针，但在公司计划终止一段关系/合同时，以下是一些实用建议：

      • 如果定期合同可以默认续签，不续签通知必须在合同通知开始之前提前较长时间发出，以避免出现必须在不续签合同与不充分的通知之间作出选择或同意在新的期限内续签合同的情况;
      • 当商业团队过于激进地改变商业关系/合同的执行条件时，必须让他们意识到部分突然终止的风险；
      • 在某些情况下，发送一份带有“通知建议”的提前终止通知可能有帮助，以便尝试与另一方确认该通知；
      • 在某些关系中，根据产品线的性质，以不同的通知期限来通知关系的结束也是有用的；
      • 最后，最好的方法是缔结关系终止协议，确定通知的期限，并在必要时规定订单的逐步递减，这在和解协议的框架内是完整的，该协议最终将放弃任何索赔 ，包括“突然终止”。

      在进入关系期限的最后阶段时，应考虑“突然终止”制度：必须仔细规划合同（或事实上的关系）终止的方式，以便掌控给对方造成损害和被起诉要求赔偿的风险。

      QUICK SUMMARY: Contract negotiations do not take place in a legal vacuum. A party who negotiates contrary to the principle of good faith and then breaks off negotiations may become liable to the other party. However, the requirements for such liability are high and the enforcement of damage claims is cumbersome. At the end of the post I will share some practical tips for contract negotiations in Switzerland.

      Under Swiss law, the principle of freedom of contract is of fundamental importance. It follows from the freedom of contract that, in principle, everyone is free to enter into contract negotiations and to terminate them again without incurring any liability. A termination of contract negotiations does not have to be justified either.

      However, the freedom of contract is limited by the obligation to act in good faith (cf. article 2 para. 1 of the Swiss Civil Code), which is of equal fundamental importance. From the moment when parties enter into contract negotiations, they are in a special legal relationship with each other. That pre-contractual relationship involves certain reciprocal obligations. In particular, the parties must negotiate in a serious manner and in accordance with their actual intentions.

      Negotiating parties must not stir up the hope of the other party, contrary to their actual intentions, that a contract will actually be concluded. Put differently, a party’s willingness to conclude a contract must not be expressed more strongly than it actually is. If a party realizes that the other party wrongly beliefs that a contract would certainly be concluded, such illusion should be dispelled in due course.

      A negotiating party that terminates contract negotiations in violation of these principles, whether maliciously or negligently, may become liable to the other party based on the culpa in contrahendo doctrine. However, such liability exists in exceptional cases only.

      • The fact that contract negotiations took a long time is not sufficient for incurring such liability. The duration of negotiations is, in itself, not decisive.
      • It is not possible to derive liability from pre-existing contractual relationships between the negotiation parties, as for example in cases where parties negotiate a “mere” prolongation of an existing agreement. The decisive factor is not whether parties were already contractually bound before, but only whether the party that terminated the contract negotiations made the other party believe that a new agreement would certainly be concluded.
      • It is not decisive whether the party who terminates contract negotiations knows that the other party has already made costly investments in view of the prospective contract. In principle, anyone who makes investments already prior to the actual conclusion of a contract does so at its own risk. Even where a party to contract negotiations knows that the other party has already made (substantial) investments in the prospective agreement, a termination of the contract negotiations will, in itself, not be considered as an act of bad faith.

      What does a liability for breaking off negotiations include?

      If a party violates the aforementioned pre-contractual obligations, the other party may be entitled to compensation for the so-called negative interest. This means that the other party must be put in the position it would have been if the negotiations had not taken place. Damages may include, e.g., expenses in connection with the negotiation of the contract (travel costs, legal fees etc.), but also a loss of income in cases where a party was not able to do business with third parties because of the contract negotiations. However, the other party has no right to be treated as if the contract had been concluded (so-called positive interest).

      Having said that, it must be kept in mind that the requirements set by Swiss court for the substantiation of damages are rather high, so that the enforcement of a liability for breaking off negotiations will often be a cumbersome process. Therefore pursuing damage claims with relatively low amounts in dispute might often require a disproportionate effort.

      Practical tips – Do’s and don’ts when negotiating contracts

      • Do not overstate your willingness to conclude a contract. Be frank with your counterparty. Make it clear from the beginning of the negotiations what clauses are important to you.
      • Do not tell the other party that you are willing to sign a contract, if you still have doubts or you are even unwilling to do so. Confirm that you will sign only if you are convinced to do so.
      • Do not allow someone else (e.g., a representative, employee, branch office etc.) to negotiate on your behalf if you are not willing to enter into an agreement anyway. Keep an eye on how the negotiations are going on and intervene if necessary.
      • Do not make costly investments before a legally binding agreement is concluded. If, for time or other reasons, such investments are necessary already before the conclusion of an agreement, insist on the conclusion of an interim contract governing such investments for the event that the envisaged agreement is not concluded finally.

      In 2020, an important revision of the Swiss statute of limitations enters into force. The new law provides for longer limitation periods in cases of personal injury and extends the relative limitation periods in tort and unjust enrichment law from one to three years.

      Background of the revision

      In June 2018, the Swiss parliament adopted an amendment to the Swiss Code of Obligations (“CO”) pertaining to a revision of the statute of limitations. In November 2018, the Swiss government decided that the revised statute of limitations shall enter into force on 1 January 2020.

      The revision was significantly influenced by asbestos cases. Under the current law, damage claims of asbestos victims were time-barred in some cases even before asbestos-related diseases could be diagnosed. In March 2014, the European Court of Human Rights held in Howald Moor and others v. Switzerland that the Swiss statute of limitations amounts in such cases to a violation of article 6 paragraph 1 of the European Convention on Human Rights (right of access to a court).

      Having said that, the revision does not only concern cases of personal injury, but also includes numerous other important changes as described in the following.

      Key changes regarding limitation periods

      A. Tort law

      In tort law, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable (revised Art. 60 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

      With the exception of cases of personal injury, the absolute limitation period remains ten years as from the date when the conduct that caused the damages occurred or ended (revised Art. 60 para. 1 CO).

      In cases of personal injury, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable. Currently the relative limitation period amounts to one year only.

      The new absolute limitation period in cases of personal injury amounts to twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 60 para. 1bis CO). Under the current law, there was no special absolute limitation period for cases of personal injury, so that the ordinary 10-year period applied (Art. 60 para. 1 CO).

      If conduct, which gives rise to liability under tort law, is also punishable under criminal law, the (longer) limitation period under criminal law remains applicable (cf. Art. 97 of the Swiss Criminal Code). However, where a first-instance criminal judgment is rendered before the conduct is time-barred under criminal law, the limitation periods ends not earlier than three years as from that criminal judgment (revised Art. 60 para. 2 CO). The current law does not provide for such an additional three-year limitation period.

      B. Unjust enrichment law

      In unjust enrichment law, the new relative limitation period amounts to three years as from the date on which the injured party knows about the claim (revised Art. 67 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

      The absolute limitation period is not affected by the revision and remains ten years after the date on which the claim arises (revised Art. 67 para. 1 CO).

      C. Contract law

      With regard to contractual claims, the ordinary limitation period remains ten years from the due date (Art. 127 CO). Furthermore, the shorter limitation period of five years from the due date applicable to (amongst others) claims for rent, interest on capital and other periodic payments, (most) claims out of employment relationships etc. remains unchanged too (Art. 128 CO).

      However, in cases of personal injury, the revised statute of limitations introduces a new relative limitation period of three years from the date on which the injured party became aware of the damage, as well as a new absolute limitation period of twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 128a CO). The current law does not provide for distinct relative and absolute limitation periods for contractual claims in cases of personal injury. Instead, the ordinary ten-year limitation period (Art. 127 CO) usually applied to such cases.

      D. Summary

      In summary, the most important elements of the revised statute of limitations are the longer (trebled) relative limitation periods in tort and unjust enrichment law (i.e., three years instead of one year) and the new special rules for cases of personal injury, which now benefit from a 20-year absolute limitation period.

      Transitional provisions / application of the revised statute of limitations to pre-existing claims

      The longer limitation periods under the revised CO apply to any claims that are not yet time-barred when the revision enters into force (i.e., on 1 January 2020; revised Art. 49 para. 1, Final Title of the Swiss Civil Code). In other words, the limitation periods of any claims that do not become time-barred until 31 December 2019 at the latest will be prolonged. This is of particular relevance with regard to claims based on tort and unjust enrichment; the short one-year relative limitation periods under the current law will be extended by another two years.

      In contrast, the current law remains applicable in case the revised statute of limitations provides for shorter limitation periods (revised Art. 49 para. 2, Final Title of the Swiss Civil Code). This concerns, in particular, contractual claims in cases of personal injury. The new three-year relative limitation period under the revised law might not apply to such claims, as the current statute of limitations does not provide for a relative limitation period at all.

      Further changes brought by the revision

      In addition to the changes of the limitation periods set out above, the revision of the statute of limitations contains numerous further modifications. Some of them are listed in the following:

      1. Limitation periods do not commence or are suspended in the event that a claim cannot be asserted for objective reasons before any court worldwide (revised Art. 134 para. 1 no. 6 CO). The current law provides for such non-commencement or suspension only if the claim cannot be brought before a Swiss court.
      2. Parties to a dispute may agree in writing that limitation periods shall be suspended during settlement discussions, mediation proceedings or other out-of-court settlement proceedings (revised Art. 134 para. 1 no. 8 CO).
      3. Once a limitation period has commenced to run, waivers of statute of limitation defenses are admissible, but must not exceed ten years (revised Art. 141 para. 1 CO). Any such waivers must be in writing (new Art. 141 para. 1bis CO).
      4. In general terms and conditions (“GTC”), statute of limitation defenses may be waived by the party who makes use of the GTCs only. In contrast, a waiver by the party on whom the GTCs are imposed (e.g., consumers) is ineffective (new Art. 141 para. 1bis CO).
      5. The limitation period for an actio pauliana under the Swiss Debt Enforcement and Bankruptcy Act (“DEBA”) is extended to from currently two years to three years after service of a loss certificate, the opening of bankruptcy proceedings or the confirmation of a composition agreement with an assignment of assets (whichever is applicable; revised Art. 292 DEBA).

      If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.

      Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.

      In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.

      Europe

      Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.

      Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.

      Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.

      Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.

      Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.

      However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.

      Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?

      If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.

      An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.

      The race to regulating DLT in Europe

      Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.

      EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.

      Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.

      In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.

      France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.

      Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.

      Conclusions

      To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.

      To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.

      The author of this post is Alessandro Mazzi.

      Renato Bucher

      业务领域

      • 代理中介
      • 反垄断
      • 契约
      • 分销协议
      • 特许经营
      联系方式 Renato

      写信给 Renato





        阅读 Legalmondo 的隐私政策
        This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

        Switzerland – New law changes statute of limitations

        2019年11月20日

        • 瑞士
        • 契约

        This week the Interim Injunction Judge of the Netherlands Commercial Court ruled in summary proceedings, following a video hearing, in a case on a EUR 169 million transaction where the plaintiff argued that the final transaction had been concluded and the defendant should proceed with the deal.

        This in an – intended – transaction where the letter of intent stipulates that a EUR 30 million break fee is due when no final agreement is signed.

        In addition to ruling on this question of construction of an agreement under Dutch law, the judge also had to rule on the break fee if no agreement was concluded and whether it should be amended or reduced because of the current Coronavirus / Covid-19 crisis.

        English Language proceedings in a Dutch state court, the Netherlands Commercial Court (NCC)

        The case is not just interesting because of the way contract formation is construed under Dutch law and application of concepts of force majeure, unforeseen circumstances and amendment of agreements under the concepts of reasonableness and fairness as well as mitigation of contractual penalties, but also interesting because it was ruled on by a judge of the English language chamber of the Netherlands Commercial Court (NCC).

        This new (2019) Dutch state court offers a relatively fast and cost-effective alternative for international commercial litigation, and in particular arbitration, in a neutral jurisdiction with professional judges selected for both their experience in international disputes and their command of English.

        The dispute regarding the construction of an M&A agreement under Dutch law in an international setting

        The facts are straightforward. Parties (located in New York, USA and the Netherlands) dispute whether final agreement on the EUR 169 million transaction has been reached but do agree a break fee of €30 million in case of non-signature of the final agreement was agreed. However, in addition to claiming there is no final agreement, the defendant also argues that the break fee – due when there is no final agreement – should be reduced or changed due to the coronavirus crisis.

        As to contract formation it must be noted that Dutch law allows broad leeway on how to communicate what may or may not be an offer or acceptance. The standard is what a reasonable person in the same circumstances would have understood their communications to mean.  Here, the critical fact is that the defendant did not sign the so-called “Transaction Agreement”. The letter of intent’s binary mechanism (either execute and deliver the paperwork for the Transaction Agreement by the agreed date or pay a EUR 30 million fee) may not have been an absolute requirement for contract formation (under Dutch law) but has significant evidentiary weight. In M&A practice – also under Dutch law – with which these parties are thoroughly familiar with, this sets a very high bar for  concluding a contract was agreed other than by explicit written agreement. So, parties may generally comfortably rely on what they have agreed on in writing with the assistance of their advisors.

        The communications relied on by claimant in this case did not clear the very high bar to assume that despite the mechanism of the letter of intent and the lack of a signed Transaction Agreement there still was a binding agreement. In particular attributing the other party’s advisers’ statements and/or conduct to the contracting party they represent did not work for the claimant in this case as per the verdict nothing suggested that the advisers would be handling everything, including entering into the agreement.

        Court order for actual performance of a – deemed – agreement on an M&A deal?

        The Interim Injunction Judge finds that there is not a sufficient likelihood of success on the merits so as to justify an interim measure ordering the defendant to actually perform its obligations under the disputed Transaction Agreement (payment of EUR 169 million and take the claimant’s 50% stake in an equestrian show-jumping business).

        Enforcement of the break fee despite “Coronavirus”?

        Failing the conclusion of an agreement, there was still another question to answer as the letter of intent mechanism re the break fee as such was not disputed. Should the Court enforce the full EUR 30 million fee in the current COVID-19 circumstances? Or should the fee’s effects be modified, mitigated or reduced in some way, or  the fee agreement should even be dissolved?

        Unforeseen circumstances, reasonableness and fairness

        The Interim Injunction Judge rules that the coronavirus crisis may be an unforeseen circumstance, but it is not of such a nature that, according to standards of reasonableness and fairness, the plaintiff cannot expect the break fee obligation to remain unchanged. The purpose of the break fee is to encourage parties to enter into the transaction and attribute / share risks between them. As such the fee limits the exposure of the parties. Payment of the fee is a quick way out of the obligation to pay the purchase price of EUR 169 million and the risks of keeping the target company financially afloat. If financially the coronavirus crisis turns out less disastrous than expected, the fee of EUR 30 million may seem high, but that is what the parties already considered reasonable when they waived their right to invoke the unreasonableness of the fee. The claim for payment of the EUR 30 million break fee is therefore upheld by the Interim Injunction Judge.

        Applicable law and the actual practice of it by the courts

        The relevant three articles are in this case articles 6:94, 6:248 and 6:258 of the Dutch Civil Code. They relate to the mitigation of contractual penalties, unforeseen circumstances and amendment of the agreement under the tenets of reasonableness and fairness. Under Dutch law the courts must with all three exercise caution. Contracts must generally be enforced as agreed. The parties’ autonomy is deemed paramount and the courts’ attitude is deferential. All three articles use language stating, essentially, that interference by the courts in the contract’s operation is allowed only to avoid an “unacceptable” impact, as assessed under standards of reasonableness and fairness.

        There is at this moment of course no well- established case law on COVID-19. However, commentators have provided guidance that is very helpful to think through the issues. Recently a “share the pain” approach has been advocated by a renowned law Professor, Tjittes, who focuses on preserving the parties’ contractual equilibrium in the current circumstances. This is, in the Court’s analysis, the right way to look at the agreement here. There is no evidence in the record suggesting that the parties contemplated or discussed the full and exceptional impact of the COVID-19 crisis. The crisis may or may not be unprovided for.  However, the court rules in the current case there is no need to rule on this issue. Even if the crisis is unprovided for, there is no support in the record for the proposition that the crisis makes it unacceptable for the claimant to demand strict performance by the defendant. The reasons are straightforward.

        The break fee allocates risk and expresses commitment and caps exposure. The harm to the business may be substantial and structural, or it may be short-term and minimal. Either way, the best “share the pain” solution, to preserve the contractual equilibrium in the agreement, is for the defendant to pay the fee as written in the letter of intent. This allocates a defined risk to one party, and actual or potential risks to the other party. Reducing the break fee in any business downturn, the fee’s express purpose – comfort and confidence to get the deal done – would not be accomplished and be derived in precisely the circumstances in which it should be robust. As a result, the Court therefore orders to pay the full EUR 30 million fee. So the break fee stipulation works under the circumstances without mitigation because of the Corona outbreak.

        The Netherlands Commercial Court, continued

        As already indicated above, the case is interesting because the verdict has been rendered by a Dutch state court in English and the proceedings where also in English. Not because of a special privilege granted in a specific case but based on an agreement between parties with a proper choice of forum clause for this court. In addition to the benefit to of having an English forum without mandatorily relying on either arbitration or choosing an anglophone court, it also has the benefit of it being a state court with the application of the regular Dutch civil procedure law, which is well known by it’s practitioners and reduces the risk of surprises of a procedural nature.  As it is as such also a “normal” state court, there is the right to appeal and particularly effective under Dutch law access to expedited proceeding as was also the case in the example referred to above. This means a regular procedure with full application of all evidentiary rules may still follow, overturning or confirming this preliminary verdict in summary proceedings.

        Novel technology in proceedings

        Another first or at least a novel application is that all submissions were made in eNCC, a document upload procedure for the NCC. Where the introduction of electronic communication and litigation in the Dutch court system has failed spectacularly, the innovations are now all following in quick order and quite effective. As a consequence of the Coronavirus outbreak several steps have been quickly tried in practice and thereafter formally set up. At present this – finally – includes a secure email-correspondence system between attorneys and the courts.

        And, also by special order of the Court in this present case, given the current COVID-19 restrictions the matter was dealt with at a public videoconference hearing on 22 April 2020 and the case was set for judgment on 29 April 2020 and published on 30 April 2020.

        Even though it is a novel application, it is highly likely that similar arrangements will continue even after expiry of current emergency measures. In several Dutch courts videoconference hearings are applied on a voluntary basis and is expected that the arrangements will be formalized.

        Eligibility of cases for the Netherlands Commercial Court

        Of more general interest are the requirements for matters that may be submitted to NCC:

        • the Amsterdam District Court or Amsterdam Court of Appeal has jurisdiction
        • the parties have expressly agreed in writing that proceedings will be in English before the NCC (the ‘NCC agreement’)
        • the action is a civil or commercial matter within the parties’ autonomy
        • the matter concerns an international dispute.

        The NCC agreement can be recorded in a clause, either before or after the dispute arises. The Court even recommends specific wording:

        “All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”).”

        The phrase “to the exclusion of the jurisdiction of any other courts” is included in light of the Hague Convention on Choice of Court Agreements. It is not mandatory to include it of course and parties may decide not to exclude the jurisdiction of other courts or make other arrangements they consider appropriate. The only requirement being that such arrangements comply with the rules of jurisdiction and contract. Please note that choice of court agreements are exclusive unless the parties have “expressly provided” or “agreed” otherwise (as per the Hague Convention and Recast Brussels I Regulation).

        Parties in a pending case before another Dutch court or chamber may request that their case be referred to NCC District Court or NCC Court of Appeal. One of the requirements is to agree on a clause that takes the case to the NCC and makes English the language of the proceedings. The NCC recommends using this language:

        We hereby agree that all disputes in connection with the case [name parties], which is currently pending at the *** District Court (case number ***), will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or ”NCC District Court). Any action for interim measures, including protective measures, available under Dutch law will be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCC Court of Appeal”).

        To request a referral, a motion must be made before the other chamber or court where the action is pending, stating the request and contesting jurisdiction (if the case is not in Amsterdam) on the basis of a choice-of-court agreement (see before).

        Additional arrangements in the proceedings before the Netherlands Commercial Court

        Before or during the proceedings, parties can also agree special arrangements in a customized NCC clause or in another appropriate manner. Such arrangements may include matters such as the following:

        • the law applicable to the substantive dispute
        • the appointment of a court reporter for preparing records of hearings and the costs of preparing those records
        • an agreement on evidence that departs from the general rules
        • the disclosure of confidential documents
        • the submission of a written witness statement prior to the witness examination
        • the manner of taking witness testimony
        • the costs of the proceedings.

        Visiting lawyers and typical course of the procedure

        All acts of process are in principle carried out by a member of the Dutch Bar. Member of the Bar in an EU or EEA Member State or Switzerland may work in accordance with Article 16e of the Advocates Act (in conjunction with a member of the Dutch Bar). Other visiting lawyers may be allowed to speak at any hearing.

        The proceedings will typically follow the below steps:

        • Submitting the initiating document by the plaintiff (summons or request as per Dutch law)
        • Assigned to three judges and a senior law clerk.
        • The defendant submits its defence statement.
        • Case management conference or motion hearing (e.g. also in respect of preliminary issues such as competence, applicable law etc.) where parties may present their arguments.
        • Judgment on motions: the court rules on the motions. Testimony, expert appointment, either at this stage or earlier or later.
        • The court may allow the parties to submit further written statements.
        • Hearing: the court interviews the parties and allows them to present their arguments. The court may enquire whether the dispute could be resolved amicably and, where appropriate, assist the parties in a settlement process. If appropriate, the court may discuss with the parties whether it would be advisable to submit part or all of the dispute to a mediator. At the end of the hearing, the court will discuss with the parties what the next steps should be.
        • Verdict: this may be a final judgment on the claims or an interim judgment ordering one or more parties to produce evidence, allowing the parties to submit written submissions on certain aspects of the case, appointing one or more experts or taking other steps.

        Continuous updates, online resources Netherlands Commercial Court

        As a final note the English language website of the Netherlands Commercial Court provides ample information on procedure and practical issues and is updated with a high frequence. Under current circumstance even at a higher pace. In particular for practitioners it’s recommended to regularly consult the website. https://www.rechtspraak.nl/English/NCC/Pages/default.aspx

        This is a summary of the approved measures, which unfortunately for both tenants and landlords do not include any public aid or tax relief and just refer to a postponement in the payment of the rent.

        Premises to which they are applied

        Leased premises dedicated to activities different than residential: commercial, professional, industrial, cultural, teaching, amusement, healthcare, etc. They also apply to the lease of a whole industry (i.e. hotels, restaurants, bars, etc., which are the most usual type of businesses object of this deal).

        Types of tenants

        • Individual entrepreneurs or self-employed persons who were registered before Social Security before the declaration of the state of alarm on March 14th, 2020
        • Small and medium companies, as defined by article 257.1 of the Capital Companies Act: those who fulfil during two consecutive fiscal years these figures: assets under € 4 million, turnover under € 8 million and average staff under 50 people

        Types of landlords

        In order to benefit from these measures, the landlord should be a housing public entity or company or a big owner, considering as such the individuals or companies who own more than 10 urban properties (excluding parking places and storage rooms) or a built surface over 1.500 sqm.

        Measures approved

        The payment of the rent is postponed without interest meanwhile the state of alarm is in force, but in any case, for a maximum period of four months. Once the state of alarm is overcome, and in any case in a maximum term of four months, the postponed rents should be paid along a maximum period of two years, or the duration of the lease agreement, should it be less than two years.

        For landlords different to those mentioned above

        The tenant could apply before the landlord for the postponement in the payment of the rent (but the landlord is not obliged to accept it), and the parties can use the guarantee that the tenant should mandatorily have provided at the beginning of any lease agreement (usually equal to two month’s rent, but could be more if agreed by the parties), in full or in part, in order to use it to pay the rent. The tenant will have to provide again the guarantee within one year’s term, or less should the lease agreement have a shorter duration.

        Activities to which it is applied

        Activities which have been suspended according to the Royal Decree that declared the state of alarm, dated march, 14ht, 2020, or according to the orders issued by the authorities delegated by such Royal Decree. This should be proved through a certificated issued by the tax authorities.

        If the activity has not been directly suspended by the Royal Decree, the turnover during the month prior to the postponement should be less than 75% of the average monthly turnover during the same quarter last year. This should be proved through a responsible declaration by the tenant, and the landlord is authorised check the bookkeeping records.

        Term to apply and procedure

        The tenant should apply for these measures before the landlord within one month’s term from the publication of the Royal Decree-law, that is, from April 22nd, 2020, and the landlord (in case belongs to the groups mentioned in point c) is obliged to accept the tenant’s request, except if both parties have already agreed something different. The postponement would be applied to the following month.

        As the state of alarm was declared more than one month ago (March 14th), landlords and tenants have already been reaching some agreements, for example 50% rent reduction during the state of alarm, and 50% rent postponement during the following 6 months. Tenants who do not reach an agreement with the landlord could face an eviction procedure, however court procedures are suspended during the state of alarm. We have also seen some abusive non-payment of rent by tenants.

        When is becomes impossible to reach an agreement with the landlord, tenants have the legal remedy of claiming in Court for the application of the “rebus sic stantibus” principle, which was highly demanded during the 2008 financial crisis but very seldom applied by the Courts. This principle is aimed to re-balance the parties’ obligations when their situation had deeply changed because of unforeseen circumstances beyond their control. This principle is not included in the Spanish Civil Code, but the Supreme Court has accepted its application, in a very restricted way, in some occasions.

        Summary – What can we learn in the time of Covid-19 that can be used in mediation? And what can we learn from mediation to be used in this crisis?

        As you know, mediation is a way to solve conflicts in which the parties keep in their hands the possible solution. They do not need to come to a third party (judge or arbitrator) to impose the answer to them. Parties can imagine more freely what they need, and how to solve their differences.

        Some of the elements and techniques mediators use in a mediation can also be used in and learnt from the current Time of Covid-19. And the current crisis also helps us to understand why they are so important in mediation.

        Cooperation to get the solution is better than unilateral and imposed decisions

        We usually tend to think that cooperation is a sign of weakness and that we recur to it only if we cannot impose or view or win our case. However, as in the time of Covid-19 where countries, scientists and people should fight together, when facing a conflict cooperation and going beyond your positions brings you the possibility to explore solutions that otherwise remain hidden.

        « Now it is increasingly recognized that there are cooperative ways of negotiating our differences and that even if a “win-win” solution cannot be found, a wise agreement can still often be reached that is better for both sides than the alternative. […]

        Three points about shared interests are worth remembering. First, shared interests lie latent in every negotiation. They may not be immediately obvious. Second, shared interests are opportunities, not godsends. Third, stressing your shared interests can make the negotiation smoother and more amicable. » [Fisher, Richard; Ury, William. “Getting to Yes: Negotiating an agreement without giving in”].

        Listening is highly effective

        In the time of Covid-19 we tend to accept better information that confirms our beliefs and we accept better indications that are in accordance with our preferences and beliefs. Nevertheless, also in this time, listening is of essential importance to understand the causes and solutions.

        A mediator will always listen to the parties and will help them to do the same. Listening the other’s side arguments, its explanation of the facts, interests and needs, the reasons for its decisions… is also of utmost importance to find a joint solution.

        «Whether you are a neutral third party (professional facilitator, friend, or manager) or one of the participants, as you listen to all the stories, you begin to sense the best solution. » [Levine, Stewart. “Getting to Resolution: Turning Conflict Into Collaboration.”]

        A solution for me can also be a solution for you

        In the time of Covid-19 it seems clear to all of us that a common solution is the only possible one. A vaccine will save the entire world. In mediation, the main benefit is to understand that, unlike a court judgement or arbitral award, a joint (not imposed) solution is possible and a benefit for me does not imply a damage or a lost for my opponent.

        «A mediator works to understand each disputant’s perspective and to look for the value in it. In this role, you refrain from judging whose side is right or wrong. Instead, you try to see the merit in each side’s perspective. » [Shapiro, Daniel. “Building Agreement”].

        We master the solution and we create the agreement in a safe environment

        The solution to the current crisis does not only depend on the authorities and on the health professionals. A great part of the solution relies on everybody’s participation, washing our hands, respecting the social distance, staying safe at home avoiding contagion and the collapse of hospitals.

        In court we leave the decision of the conflict in the hands of a third party –the judge, the arbitrator­–. In a mediation, on the contrary, the solution remains in our hands. We know what our interests are, we create our agreement. Our imagination is our ally in finding the solution together with the counterparty and the assistance and experience of the mediator who does not impose it but helps the parties to find it. Quite often, what parties could get in mediation goes far beyond what a judge would’ve been able to grant. And this in a confidential environment.

        «The Sage is self-effacing and scanty of words. When his task is accomplished and things have been completed, all the people say, “We ourselves have achieved it!” » [Lao Tzu]

        Emotions do matter

        Good and bad emotions are inevitable. Particularly in periods of uncertainty, crisis and loose of control, we all face strong emotions. This is true in situations like this Covid-19 and in all conflicts, and not only in personal ones. Egos, envies, fears, anxieties… are also part of our day-to-day life, work and business, but they are rarely considered in courts when solving your conflicts. A mediator helps you to take them into account in a safe environment and as a part of the conflict itself.

        «Solving problems seems easier than talking about emotions. The problem is that when feelings are at the heart of what’s going on, they are the business at hand and ignoring them is nearly impossible. » [Stone, Douglas. “Difficult Conversations: How to Discuss What Matters Most”].

        Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19, even though it affects and produces effects in many different legal fields, does not include any reference to contracts for leases of real estate, or houses, premises or offices.

        The purpose of this note is to analyze the effects of the situation of the State of Alarm regarding those leases of offices or premises that have been forced to close in application of the decree; those others that remain totally or partially open and in operation, although with a reduced or minimal activity, in principle are not subject to the conclusions reached below without prejudice to the fact that there are individualized cases to which, despite the fact that there is not a complete closure, reasonably and logically can be applied to them.

        It is not excluded in any way that in the event of an extension of the validity of the State of Alarm, a regulation that affects the leasing contracts could be published, but for the moment this has not happened. If this were to happen, the content of said norm would apply.

        Based on the principle of freedom of covenants enshrined in art. 1255 of the Spanish Civil Code, which allows the parties signing the contract to agree (i) what scenarios and situations should be considered as constituting cases of Force Majeure and Act of God and (ii) what the contractual consequences of such scenarios should be, the first exercise that must be done is to check if the contract includes a regulatory clause of Force Majeure and its effects; if so, such clause must be followed and its analysis is left out of this note.

        In the absence of express regulation in the contract, the provisions of the Civil Code and specifically article 1105 would apply.

        COVID-19 as Force Majeure

        COVID-19 is an event that in principle meets the requirements of the Civil Code to be classified as an event of Force Majeure (art. 1105 Civil Code) since:

        • It is a foreign act and not attributable to the contractor who is the debtor of the benefit or obligation.
        • It is unpredictable, or if it were said to be “predictable”, it is certainly inevitable.
        • The event in question, the pandemic, must be a cause and result in the breach of the obligation, that is, there must be a causal link.

        Therefore, fulfilling the three requirements, the first conclusion that we reach is that very foreseeably, the Spanish Courts will classify as “Force Majeure” the situation caused by COVID 19 when a judicial dispute is raised in which such matter is discussed between litigants. We will now analyze the consequences of this status.

        Consequences of considering COVID-19 as an event of Force Majeure

        Most of the doctrine and jurisprudence understand that the effects of classifying a scenario as a case of Force Majeure in principle are:

        • Total and definitive impossibility of complying; releasing the debtor from the fulfillment of the obligation.
        • Partial inability to comply; the debtor is released only in the part that it is impossible to fulfill, but still bound by the part that can be carried out.
        • Temporary inability to comply; the debtor is released from the responsibility for default as long as the exceptional situation persists.

        Now, let us analyze how it would affect to considerate the epidemic as Force Majeure in relation to lease agreements for uses other than housing.

        Regarding the payment of rent

        The question to answer is if the classification of the current pandemic situation as a case of Force Majeure frees the tenant (whose premises have been forced to close by order of the government authority) from the obligation to pay the rent while said closing obligation persists, including in the concept of “release” different alternatives: total or partial cancellation and / or total or partial postponement.

        We are meeting these days with a frequent reaction among some tenants, who, unilaterally have informed their landlords that considering COVID 19 an event of force majeure and having been forced to close the premises / office, they suspend the payment of the rent while said situation remains. They do not terminate the contract, they do not hand over the possession, they remain in it (the premises remain closed and not operational) but they suspend the payment (it is not clear whether suspending in this case means liberating himself from the payment of the rent or postponing its payment for when the Force Majeure scenario ends).

        Arguments against liberation

        As much as this attitude can be considered “understandable” from the perspective of the lessee, not from the point of view of the lessor, said consideration runs into an obstacle: the interpretation of the Force Majeure made by the Supreme Court regarding pecuniary payment obligations, according to the Civil Sentence of May 19, 2015:

        “Not being able to consider, in the case of pecuniary debts, the subjective impossibility – insolvency – nor the objective or formal imposition, the doctrine concludes that it is not possible to imagine that if the impossibility is due to a fortuitous event it could have as effect the extinction of the obligation.

        The exoneration of the debtor by fortuitous event is not absolute, it has exceptions, as provided for in article 1105 CC, and one of them, by application of the “genus nunquam perit” principle, would be in cases of obligations to deliver generic things.

        In such circumstances, the pecuniary debtor is obliged to fulfill the main obligation, without the economic adversities freeing him from it, since what is owed is not something individualized that has perished, but something generic such as money”.

        In conclusion: it does not seem that this jurisprudential criterion allows to defend that the fulfillment of the pecuniary obligations is released, extinguished or that its breach is justified in cases of Force Majeure, therefore the pecuniary debtor, in this case the lessee, in application of this criterion and due to the generic condition of the money, would be obliged to fulfill his main obligation not being freed from it by the unforeseen economic adversities on the basis of Force Majeure.

        Arguments in favor of liberation: art. 1575 of the Civil Code

        Having said the foregoing, reference should be made to an article of the Civil Code that, with certainty, will be profusely cited in the upcoming judicial conflicts.

        The art. 1575, dealing with the leasing of rustic estates, recognizes the lessee’s right to the reduction of rent in the event of loss of more than half of the fruits (unless otherwise agreed) in “fortuitous, extraordinary and unforeseen cases … such as fire, war, plague, unusual flood, locust, earthquake or another equally unusual that the contractors have not been able to rationally foresee ”.

        Is this article, foreseen for rustic leases, applicable to urban leases?

        The art. 4.1 CC allows the analogical application of the rules when (i) they do not contemplate a specific assumption and (ii) they regulate a similar situation in which “identity of reason” may be appreciated.

        The Sentence of the Supreme Court from January 15, 2019, that solved a conflict of a lease of a building used as hotel, in which the tenant had sought the reduction of the rent under the clause “rebus sic stantibus” by the crisis of 2008 and had alleged in his favor the application of art. 1575, established:

        “The argumentation of the appealed judgment rejecting the claim to lower the agreed price is also not contrary to the legal criterion that follows from art. 1575 CC, which is the rule that allows the reduction of income in the leasing of productive assets that do not derive from risks of the business itself, it also requires that the loss of benefits originates from extraordinary and unforeseen fortuitous cases, something that by its own rarity could not have been foreseen by the parties, and that the loss of fruits is more than half of the fruits. In this particular case, none of these circumstances concur. The decrease in rents comes from market developments, the parties anticipated the possibility that in some years the profitability of the hotel would not be positive for the lessee and the losses alleged by NH in the operation of the Almería hotel are less than fifty per hundred, without taking into account that the overall result of his activity as manager of a hotel chain is, as the Audience considers proven in view of the consolidated management report, positive”.

        The Supreme Court does not admit the application of art. 1575, but not because it is considered not applicable to non-rustic leases, but because the Court concludes that the requirements are not fulfilled since the 2008 crisis was neither unpredictable and because the lessee’s losses do not exceed 50%.

        But, that interpretation of the Supreme Court together with the wording of art. 4.1 CC would support the claim of the lessee who has no incomes during the State of Alarm to demand a reduction in rental fee that fits the principle of proportionality.

        Regarding early termination at the request of the lessee

        However, we may find situations in which the lessee considering the current situation, decides to terminate the lease in advance, delivering the premises to the lessor.

        They are cases in which the early termination of the contract is intended, without respecting (i) or the mandatory term (ii) or the previous notice, in both cases under the hypothesis that they are thus regulated in the contract.

        In these scenarios, we understand that it may be defendable that, due to the situation of force majeure caused by COVID 19 and in application of art. 1105 of the CC, the lessee is exempt from the obligation:

        1. To respect the mandatory term of the lease
        2. To give prior notice to the lessor in case of early termination of the contract

        In both cases, the contract would be terminated with the delivery of possession of the premises, without prejudice to having to respect the other obligations set forth in the contract for termination and delivery, provided that they are not equally affected by the situation of Force Majeure.

        Our opinion is that, also in application of Article 1,105 of the CC, the thesis that the lessee would be released from any obligation to compensate damages to the lessor for said advance resolution or breach of the obligatory duration of the contract could be defendable before the Courts.

        Conclusion

        In conclusion, when the Courts decide on the effects of the current pandemic (that they will surely classify as Force Majeure), and how this will affect the obligations of leaseholders who have been forced to close their business, our opinion is the following:

        • Regarding the obligation to pay the rent, despite the contrary criterion of the sentence from May 19, 2015, we find defendable the analogue application of art. 1575 of the CC, based as well on the Supreme Court Sentence from January 15, 2019, in order to demand a proportional and equitable reduction of the rent.
        • Regarding the power of the leaseholder to terminate the contract in advance, in case the leaseholder hands the possession of the property to the lessor, we find defendable to exonerate the leaseholder from complying with the advance notice or mandatory term in case provided in the contract, without the obligation to indemnify the lessor for this reason.

        Application of the Rebus Sic Stantibus clause (“RSS” clause)

        We will analyze below if the RSS clause can be applicable to the case that we are studying and with which consequences.

        Requirements of the RSS clause (Latin aphorism that means “things thus standing”)

        The principle RSS operates as an intrinsic clause (that is, implicit, without the need to expressly agree by the parties) in the contractual relationship, which means that the stipulations established in a contract are so in view of the concurrent circumstances at the time, that is, “things thus standing”, so that any substantial and unforeseen alteration of the same could lead to the modification of the contractual content.

        The RSS clause is not regulated in any article in our laws; It is a doctrinal construction that the jurisprudence has traditionally admitted (examples among many other Supreme Court Sentences from June 30, 2014, February 24, 2015, January 15, 2019, July 18, 2019), with great caution, only in certain cases, and requiring the following requirements:

        • That there has been an extraordinary alteration in the circumstances of the contract, at the time that it must be fulfilled, in relation to those present at the time the parties entered the contract.
        • To analyze whether an incident can determine the extraordinary alteration of the circumstances that gave meaning to the contract, we must a) contrast the scope of said alteration regarding the meaning or purpose of the contract and the commutativity or performance balance thereof; and b) the “normal risk” inherent or derived from the contract must be excluded.
        • That there has been an exorbitant disproportion, out of all calculation, between the obligations of the contracting parties, causing an imbalance between them.
        • That the above occurs because of radically unpredictable circumstances.
        • That there is no other remedy to overcome the situation.

        Historically, our courts have been very reluctant to apply RSS, although since the economic crisis of 2008-2012 there has been a certain change in criteria and greater jurisprudential receptivity.

        Consequences of the application of RSS

        The doctrine establishes that the application of the RSS does not have in principle terminating effects on the contract, but only modifying effects, aimed at compensating the imbalance of obligations between the parties;  the doctrine establishes that this only applies to long-term contracts or successive contracts with deferred execution.

        In application of the good faith principle, the reaction to an event of fortuitous event, force majeure or, in general, an event that generates a disproportion between the parties, such as that regulated by the RSS clause, should be the amendment of the contract to rebalance the obligations between the parties, and only in the event of material impossibility to comply with the obligations, the resolution of the obligation, in both cases without compensation for non-compliance.

        For this reason, in relation to leasing contracts and in case of closure of the premises by mandatory mandate, we understand that the RSS clause may be:

        • alleged by the leaseholder to request or urge the lessor to downsize or postpone payment.
        • estimated by the judges, when these assumptions are debated before the Courts, when accepting such contractual amendment as equitable and legitimate in order to compensate the imbalance generated by the effects of COVID 19.

        To summarize, the RSS clause can be a tool for the leaseholder that has had to close its premises during the State of Alarm, when negotiating with the lessor an amendment of the contract, trying to postpone the rent while the State of Alarm or negotiating a discount.

        We should bear in mind:

        • That the RSS clause is unavoidably applicable on a casuistic basis, there are no generalizations and it will be necessary to take into account the effect caused by COVID 19 in each specific contractual relationship (Supreme Court Sentence from June 30, 2014 and February 24, 2015) and the real imbalance of benefits produced, and
        • That, as we have said, the Courts are generally reluctant to apply this clause, that they only apply in the absence of any other legal tool and in situations in which the maintenance of the contractual status quo reveals a manifest “injustice ”and a evident and resounding imbalance between the performance of the parties.

        Does this mean that the leaseholder may impose on the lessor a modification of the economic conditions of the contract under the RSS clause (postponement or total or partial cancellation of the payment)?

        We cannot assure this, what we think is that the application of this RSS clause should:

        • Justify a reasonable request from the leaseholder to temporarily change the conditions of the contract (postponement or cancellation, total or partially) that the lessor must reasonably meet.
        • In case of unreasonable refusal of the lessor, we recommend to document as much as possible leaseholder´s request and the possible negotiations or refusal, in order to substantiate a suspension of the payment of the rent, total or partial, during the State of Alarm aimed, not to extinguish his obligation, but to postpone it.

        We will have to wait for the reaction of the Courts when they judge these conflicts, but if we dare to anticipate that it is quite possible that the judicial tendency will be to grant protection to the leaseholder with support in the RSS clause and the principle of business preservation, when it comes to validating certain modifying effects regarding the payment obligations of the leaseholder (total or partial remission of the rent payment during the pandemic crisis, postponement, or partial postponement).

        In any case, it will be essential to prove, that the behavior of the leaseholder seeking protection in the RSS clause to amend the contract, has been strictly adjusted to the principle of good faith (Supreme Court Sentence from April 30, 2015).

        It will also be important to analyze case by case why the displacement of the risk derived from the “exceptional and unforeseen event” from one contractor to the other is justified (Supreme Court Sentence from January 15, 2015) and could well be defended (Supreme Court Sentence from July 18, 2019) that both contracting parties must divide and assume the consequences between the two of them. The judicial decisions will vary in each specific case.

        Conclusions and Recommendations

        In conclusion, it seems that the leaseholder would have two instruments in order to try to successfully suspend or postpone the payment of the rents, the RSS clause and the principle of Force Majeure.

        In our view, the replacement of the contractual balance altered by the exceptional event, may consist of either an extension of the lease payment terms or the application of a total, or partial cancellation of the rental payment obligation while it lasts the State of Alarm, but we understand that it will be defendable that the delay in the payment may not give rise neither to the termination of the contract under art. 1124 Cc nor to the requirement of damages art. 1105 Cc, therefore, will not empower the lessor to urge eviction.

        Therefore, the steps to be followed in each case would be:

        • Carry out an examination of the contract to check whether force majeure and acts of God are regulated and if the current situation is in accordance with the contract provisions.
        • Should nothing be set forth at the contract, and in case the leaseholder has had to close the premises or office, notify the other party of this circumstance and try to negotiate a novation of the lease requesting:
          • Waiver of the payment obligation during the Alarm State.
          • The application of a discount on the payment obligations with both parties sharing the effects of the pandemic, in a proportion to be agreed.
          • Postponement of payment obligations until the premises or office can be reopened with a payment plan for the deferred debt.

        If it is not possible to reach an agreement, it is advisable to try to maintain evidence that the parties have acted in good faith trying to reach a negotiated solution and at the extreme (from the leaseholder´s point of view) announce, without waiting to receive a communication or claim from the Lessor, the suspension of the rental fee payment until reopening of the premises/offices, justifying the same in the Alarm State.

        《法国商业法》规定，贸易商在未给予充分书面通知的情况下终止书面合同或非正式商业关系(第442-1.1条)将被制裁。在过去的二十年中，这已成为商业关系或合同终止（全部或部分终止）时所有补偿行为（最高可达24个月的毛利率以及其他损害赔偿）的经常性法律依据。

        因此，与法国公司签约的外国贸易商应尽量避开该规则的管辖范围 (第一部分)，如果不能，则应理解并控制其实施 (第二部分)。

        简而言之

        外国公司如何避免或控制与法国法律规定的“突然终止商业关系”有关的风险？

        与法国公司做生意的外国公司应该这样做：

        • 与法国供应商或客户尽快达成书面（框架）协议，即使是非常简单的关系也是如此；
        • 规定一项有利于外国法院或仲裁以及外国适用法律的条款，而如果不能选择该条款，则只能服从法国法院和法律。

        外国公司如何才能掌控法国法律规定的“突然终止商业关系”的风险?

        与法国公司做生意的外国公司应该这样做：

        • 要知道，本条适用于几乎所有类型的商业关系或合同，无论是书面的还是非书面的，无论是定期的还是非定期的;
        • 检查其关系/合同是否期限足够且正常和重要，以及对方是否有合理理由相信该关系/合同会继续维持；
        • 给出终止或不续约（甚至是重大修改）的书面通知，其期限主要考虑到关系的持续时间，与合同通知的时限无关；
        • 谨慎地劝告当事方在遭遇不可抗力和严重过失的情况下，搁置“突然终止”；
        • 如果没有充分的通知，则预计赔偿金额为为每月平均毛利率与未获批准的事先通知的期限之积。

        如何避免适用法国的“突然终止”规则?

        在国际事务中，外国公司必须预见其关系是否将受到法国法律的管辖，并且在发生争议的情况下，是否将其关系提交到法国法院。

        “突然终止合同”的法律适用范围是什么?

        对于一个外国公司来说，要正确地掌握适用于“突然终止”的法国法律冲突法规则框架是相当困难的。巴黎上诉法院在2018年9月19日的裁决（RG 16/05579，DES / 娇韵诗）中隐含提及Granarolo欧盟裁决（07 14 16，N°C196 / 15），该裁决将合同资格扩展至大多数业务关系，以改善可预见性，来应对外国公司试图排除法国法律及其“突然终止”规则的行为。

        突然终止书面合同或“默认合同关系”

        根据关于合同适用法律的罗马一号法规 (EC No 593 / 2008，2008年6月17日)：

        • 如果当事各方选择了外国法律：选择外国适用法律的条款将是有效的，并将受到法国法官的尊重 (服从OMR，请参阅下文)，前提是当事各方选择的法律是明示或确定的。
        • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为它可能也是分销商/加盟商所在国的法律等，或是提供合同服务功能的当事方所在国家/地区的法律。

        突然终止“非默认合同关系”

        如果是非正式关系 (即偶尔下达订单)，法国法官将保留侵权行为资格，并将参考适用于非合同义务法律的《罗马二号条例》(第864/2007号，2007年7月11日)。

        • 如果当事各方选择了外国法律：法国法官应执行草拟的外国法选择条款，条件是该条款明确包含侵权案件。
        • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为这可能是损害发生的国家/地区的法律（无论是发生事件的地点还是造成间接后果的地点），是法国受害者遭受终止结果的总部所在地。

        “突然终止合同”是法国的一项压倒一切的强制性规定吗?

        法国法院的立场相当模糊且令人不满。 简而言之：巴黎商事法庭认为“突然终止”不是OMR，巴黎上诉法院（负责“突然终止”案件的唯一法国上诉法院）却支持OMR资格，而最高法院……对此事保持沉默。尽管罗马一号条例（或罗马二号）第9.1条缺乏严格的推理和理由，但很明显，巴黎上诉法院有司法意愿将“突然终止”归为OMR。 因此，如果向法国法院提出“突然终止”的要求，则该法国法院极有可能排除适用的外国法律，而将其替换为产生于第L 442-1. II条“突然终止”。

        因此，外国公司确保“突然终止”不会妨碍合同的终止或停止续签的唯一可能性，不仅是选择一项适用的外国法律，而且是确保将争端提交外国法官或仲裁庭。

        如何避免法国法院对“突然终止”索赔的管辖权?

        “突然终止”索赔和欧盟内部共同承包商

        欧洲法院的裁决(Granarolo, 2016年7月14日，NC196/15)区分了以下索赔:

        • 书面框架合同或默认合同关系 (仅当欧洲法院所列出的证据由国家法官确定时才存在，即相互承认的关系和承诺的限期，如排他性、特价或交货与付款条件、竞业禁止等)：根据布鲁塞尔一号重铸条例下的管辖权冲突规则，此类索赔具有合同性质；
        • 非正式关系——一种非默认的合同关系 (即不时下达的命令)：在布鲁塞尔一号重铸条例下这样的请求具有侵权性质。

        （a）谁是“突然终止”书面合约或“默契合约关系”的法官?

        • 为了外国法院的利益，管辖权条款将由法国法院执行，即使它是一个不对称的条款 (最高法院，2015年10月7日，Ebizcuss.com / 苹果销售国际)。
        • 在缺乏法院条款选择的情况下，如果以“突然终止”为基础提起诉讼的法国索赔人是服务提供者，例如分销商，代理人等，则法国法院可能具有管辖权 (请参阅欧洲法院 Corman Collins案， 19 12 13，C-9 / 12和布鲁塞尔一号重铸条例第7.1.b.2条)。

        （b）谁是“非默认合同关系”“突然终止”的法官？

        • 我们认为，法国法院可能会继续执行侵权案件中的管辖权条款，特别是明确包含侵权诉讼的条款 (最高法院，1°Ch.Civ.，2017年1月18日，n°15-26105，里维埃拉汽车/阿斯顿马丁拉贡达有限公司)。
        • 在缺乏法院条款选择权的情况下，法国法院将对“突然终止”索赔具有管辖权，所以由位于发生损害事件地点的法官（布鲁塞尔一号第7.3条）负责，而该地点是“突然终止”生效的地方……即如果法国公司是受害者，该地点就在法国。

        “突然终止”索赔和非欧盟共同承包商

        如果一名法国受害者基于非欧盟公司的“突然终止”向法国法院提出索赔，Granarolo解决方案将不在事实上适用。在非欧盟关系中，法国法官只能继续保留侵权资格。在这种情况下，法国法院可以根据损害事件发生的地点保留其管辖权。然而，即使是基于侵权的索赔，在法国也可以承认管辖权条款。

        “突然终止”索赔和仲裁

        制定一项临时条款或机构仲裁条款可能是规避法国法院管辖权的最安全解决方案。理想情况下，该条款将在法国境外确定仲裁庭的席位。根据仲裁员的胜任力原则，法国法院宣布其自身无能力仲裁，除非仲裁条款明显无效或明显不适用，无论合同或侵权理由如何 (特别参见巴黎上诉法院，2019年9月5日，n / 17/03703)。

        结论：外国公司不应公开管辖权和管辖法律问题。他们必须协商出一个安全港湾，否则，被终止的法国受害人将可能有权向法国法官提出“突然终止”的要求（请参阅下面第2部分的内容）

        如何掌握“突然终止”法律的规则?

        在法国法律适用的情况下，外国公司将面临法国商业法典L442 -1.II条对“突然终止”的制裁。 作为一项初步说明，首先必须知道，“突然终止”责任的执行是通知时间太短的结果。 因此，该方案没有制定自动补偿规则。换句话说，一旦终止的发起人发出了合理的通知，基于该通知的责任就可以被免除。

        “突然终止”的先决条件：已建立的商业关系

        所有合同均受该法律制度的约束，法规中规定了特定终止通知的合同除外，例如商业代理合同和公路分包合同的货物运输。

        首先，必须存在一种可以通过书面合同或事实上当事双方的行为所证明的关系。这种关系可以建立在一系列默认续签的合同或由多个订单实现的正常业务流程基础之上。

        第二，这种关系必须具有既定的特征。没有法律定义，但是判例法年复一年地对这一概念进行了界定，判例法已经建立了一个客观标准和一个更主观的标准。

        (a) 客观标准意味着双方之间有足够长期、经常和重要的关系。关系的持续时间是最重要的标准。这种关系必须是有规律的，也就是说，它不能被打断(太频繁或太长时间)。这种关系最终必须是有意义的，并且在数量或价值上代表双方之间的业务流。

        (b) 主观测试主要侧重于受害人在基于事实层面上认为继续的合同/关系（例如投资要求，几年内的预算等）将走向破裂的合理信念。相反，正是基于对共同的未来缺乏合理信念的结果，即当终止方多次提出招标要求时，终止方可以证明其缺乏稳定的品格 (除非这是一个诡计)。

        提前预计“突然终止”索赔

        (a) 终止可以是全部或部分的

        完全破裂是通过关系的完全终止来实现的，例如终止合同、停止买方发送订单或停止供应商记录订单。但是要处理的最复杂的情况是所谓的部分破裂，它是通过对部分影响关系但不会将其减少为零的部分进行修改而得出的 (例如：价格上涨或下跌，付款或交付条件的改变)。

        (b) 终止必须以合理的事先书面通知为准

        通知必须以书面形式通知。没有书面通知本身就是一种违约行为。通知必须清楚地反映一方当事人全部或部分断绝关系的意愿，并且必须清楚地表明这一意愿。双方必须区分正式违约通知函和随后发出的违约通知（如适用）。在通知期间内，双方必须完全遵守所有合同条件。

        在2019年改革之前，法国法律没有明确规定应遵守的事先通知的期限。如果判例法规定了若干标准，则应当指出，最重要的标准是关系的持续时间。法官还考虑到受害人所占的营业额份额、领土排他性的存在与否、产品的性质和活动的范围、受害者进行投资的重要性（特别是对于所涉关系的投资），最后是经济依赖的状态。法官们发出通知的时间长短不一。对通知的评估是逐案进行的。即使是几乎对于一段关系中的一年，也可能需要一个月的通知时间（根据关系中的其他标准进行上下调整），很难给出一个黄金法则。2019年4月24日的法令根据第l442 -1. i条把合理到期的通知期限限制为18个月。但大部分诉讼仍存在不确定性，因为只有特别长寿或特别敏感的关系，才可能导致高于18个月的通知分配时间。

        法官不受合同规定的合同通知书的约束。但是，如果违约方还违反了合同规定的终止条款和条件，则受害人可以在突然终止的侵权基础上，或违反合同义务的基础上，追究违约方的责任。

        排除“突然终止合同”的情况

        法律制度规定了两种情况，而判例法似乎还规定了其他情况。

        (a) 两个法律例外分别是不可抗力（很少被法院神圣化）和遭受终止的受害者的过失，判例法补充说，这必须是对合同承诺或法律规定（如不尊重排他性、竞业禁止、保密或变更控制责任，或未按合同规定支付到期金额）的严重违反。

        当然，法官们认为自己不受界定什么构成严重不当行为的终止条款的约束。在任何情况下，因严重不当行为而终止协议的一方必须在终止协议书中明确通知对方。最重要的是，严重的不当行为会导致通知的缺少，因此，如果终止方指控严重的不当行为，但给予通知，无论是哪种情况下，法官都可能会得出结论，认为该过失不够严重。

        (b)  近年来，判例法增加了其他免责的案例。在这种情况下，破裂是由当事方以外的原因造成的，如经济危机，上游或下游自身客户或供应商的损失。

        无论其期限是什么，法官们还排除了定期合同第一个期限结束的假设中的“突然终止”：合同的首次续签对合同破裂的受害者构成可预见的事件，这就排除了残暴的概念；但一旦合同至少续签了一次，法官随后就可以描述受害者对新的默认续签的合法信念。

        “突然终止”的赔偿

        法官只赔偿暴力行为本身的破坏性后果，但至少在第L442-1.II条的范围内，不赔偿违约行为本身的后果。

        基本规则非常简单：必须确定应授予的通知的期限，从中减去实际授予的通知期限。该净通知时间乘以受害人的平均每月毛利率，或在更通常的情况下，是乘以可变成本的利润，不包括因不履行合同/关系而消失的成本。被告应毫不犹豫地索要完整的会计证据，尤其是确定（较低的）利率，甚至要求就这些会计要素提供司法专业知识。通常，平均每月利润的基数包括最近24或36个月。

        通常，以平均保证金计算的补偿不包括任何其他补偿。但是，受害人可以证明其由于关系破裂的残酷性而遭受了其他损失。例如由于这种野蛮行为直接导致的被解雇或受害者最近进行的投资贬值。

        在预测“突然终止”时的一些实用技巧

        即使法律制度仍然模棱两可，判例法极其苛刻，无法发布强有力的指导方针，但在公司计划终止一段关系/合同时，以下是一些实用建议：

        • 如果定期合同可以默认续签，不续签通知必须在合同通知开始之前提前较长时间发出，以避免出现必须在不续签合同与不充分的通知之间作出选择或同意在新的期限内续签合同的情况;
        • 当商业团队过于激进地改变商业关系/合同的执行条件时，必须让他们意识到部分突然终止的风险；
        • 在某些情况下，发送一份带有“通知建议”的提前终止通知可能有帮助，以便尝试与另一方确认该通知；
        • 在某些关系中，根据产品线的性质，以不同的通知期限来通知关系的结束也是有用的；
        • 最后，最好的方法是缔结关系终止协议，确定通知的期限，并在必要时规定订单的逐步递减，这在和解协议的框架内是完整的，该协议最终将放弃任何索赔 ，包括“突然终止”。

        在进入关系期限的最后阶段时，应考虑“突然终止”制度：必须仔细规划合同（或事实上的关系）终止的方式，以便掌控给对方造成损害和被起诉要求赔偿的风险。

        QUICK SUMMARY: Contract negotiations do not take place in a legal vacuum. A party who negotiates contrary to the principle of good faith and then breaks off negotiations may become liable to the other party. However, the requirements for such liability are high and the enforcement of damage claims is cumbersome. At the end of the post I will share some practical tips for contract negotiations in Switzerland.

        Under Swiss law, the principle of freedom of contract is of fundamental importance. It follows from the freedom of contract that, in principle, everyone is free to enter into contract negotiations and to terminate them again without incurring any liability. A termination of contract negotiations does not have to be justified either.

        However, the freedom of contract is limited by the obligation to act in good faith (cf. article 2 para. 1 of the Swiss Civil Code), which is of equal fundamental importance. From the moment when parties enter into contract negotiations, they are in a special legal relationship with each other. That pre-contractual relationship involves certain reciprocal obligations. In particular, the parties must negotiate in a serious manner and in accordance with their actual intentions.

        Negotiating parties must not stir up the hope of the other party, contrary to their actual intentions, that a contract will actually be concluded. Put differently, a party’s willingness to conclude a contract must not be expressed more strongly than it actually is. If a party realizes that the other party wrongly beliefs that a contract would certainly be concluded, such illusion should be dispelled in due course.

        A negotiating party that terminates contract negotiations in violation of these principles, whether maliciously or negligently, may become liable to the other party based on the culpa in contrahendo doctrine. However, such liability exists in exceptional cases only.

        • The fact that contract negotiations took a long time is not sufficient for incurring such liability. The duration of negotiations is, in itself, not decisive.
        • It is not possible to derive liability from pre-existing contractual relationships between the negotiation parties, as for example in cases where parties negotiate a “mere” prolongation of an existing agreement. The decisive factor is not whether parties were already contractually bound before, but only whether the party that terminated the contract negotiations made the other party believe that a new agreement would certainly be concluded.
        • It is not decisive whether the party who terminates contract negotiations knows that the other party has already made costly investments in view of the prospective contract. In principle, anyone who makes investments already prior to the actual conclusion of a contract does so at its own risk. Even where a party to contract negotiations knows that the other party has already made (substantial) investments in the prospective agreement, a termination of the contract negotiations will, in itself, not be considered as an act of bad faith.

        What does a liability for breaking off negotiations include?

        If a party violates the aforementioned pre-contractual obligations, the other party may be entitled to compensation for the so-called negative interest. This means that the other party must be put in the position it would have been if the negotiations had not taken place. Damages may include, e.g., expenses in connection with the negotiation of the contract (travel costs, legal fees etc.), but also a loss of income in cases where a party was not able to do business with third parties because of the contract negotiations. However, the other party has no right to be treated as if the contract had been concluded (so-called positive interest).

        Having said that, it must be kept in mind that the requirements set by Swiss court for the substantiation of damages are rather high, so that the enforcement of a liability for breaking off negotiations will often be a cumbersome process. Therefore pursuing damage claims with relatively low amounts in dispute might often require a disproportionate effort.

        Practical tips – Do’s and don’ts when negotiating contracts

        • Do not overstate your willingness to conclude a contract. Be frank with your counterparty. Make it clear from the beginning of the negotiations what clauses are important to you.
        • Do not tell the other party that you are willing to sign a contract, if you still have doubts or you are even unwilling to do so. Confirm that you will sign only if you are convinced to do so.
        • Do not allow someone else (e.g., a representative, employee, branch office etc.) to negotiate on your behalf if you are not willing to enter into an agreement anyway. Keep an eye on how the negotiations are going on and intervene if necessary.
        • Do not make costly investments before a legally binding agreement is concluded. If, for time or other reasons, such investments are necessary already before the conclusion of an agreement, insist on the conclusion of an interim contract governing such investments for the event that the envisaged agreement is not concluded finally.

        In 2020, an important revision of the Swiss statute of limitations enters into force. The new law provides for longer limitation periods in cases of personal injury and extends the relative limitation periods in tort and unjust enrichment law from one to three years.

        Background of the revision

        In June 2018, the Swiss parliament adopted an amendment to the Swiss Code of Obligations (“CO”) pertaining to a revision of the statute of limitations. In November 2018, the Swiss government decided that the revised statute of limitations shall enter into force on 1 January 2020.

        The revision was significantly influenced by asbestos cases. Under the current law, damage claims of asbestos victims were time-barred in some cases even before asbestos-related diseases could be diagnosed. In March 2014, the European Court of Human Rights held in Howald Moor and others v. Switzerland that the Swiss statute of limitations amounts in such cases to a violation of article 6 paragraph 1 of the European Convention on Human Rights (right of access to a court).

        Having said that, the revision does not only concern cases of personal injury, but also includes numerous other important changes as described in the following.

        Key changes regarding limitation periods

        A. Tort law

        In tort law, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable (revised Art. 60 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

        With the exception of cases of personal injury, the absolute limitation period remains ten years as from the date when the conduct that caused the damages occurred or ended (revised Art. 60 para. 1 CO).

        In cases of personal injury, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable. Currently the relative limitation period amounts to one year only.

        The new absolute limitation period in cases of personal injury amounts to twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 60 para. 1bis CO). Under the current law, there was no special absolute limitation period for cases of personal injury, so that the ordinary 10-year period applied (Art. 60 para. 1 CO).

        If conduct, which gives rise to liability under tort law, is also punishable under criminal law, the (longer) limitation period under criminal law remains applicable (cf. Art. 97 of the Swiss Criminal Code). However, where a first-instance criminal judgment is rendered before the conduct is time-barred under criminal law, the limitation periods ends not earlier than three years as from that criminal judgment (revised Art. 60 para. 2 CO). The current law does not provide for such an additional three-year limitation period.

        B. Unjust enrichment law

        In unjust enrichment law, the new relative limitation period amounts to three years as from the date on which the injured party knows about the claim (revised Art. 67 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

        The absolute limitation period is not affected by the revision and remains ten years after the date on which the claim arises (revised Art. 67 para. 1 CO).

        C. Contract law

        With regard to contractual claims, the ordinary limitation period remains ten years from the due date (Art. 127 CO). Furthermore, the shorter limitation period of five years from the due date applicable to (amongst others) claims for rent, interest on capital and other periodic payments, (most) claims out of employment relationships etc. remains unchanged too (Art. 128 CO).

        However, in cases of personal injury, the revised statute of limitations introduces a new relative limitation period of three years from the date on which the injured party became aware of the damage, as well as a new absolute limitation period of twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 128a CO). The current law does not provide for distinct relative and absolute limitation periods for contractual claims in cases of personal injury. Instead, the ordinary ten-year limitation period (Art. 127 CO) usually applied to such cases.

        D. Summary

        In summary, the most important elements of the revised statute of limitations are the longer (trebled) relative limitation periods in tort and unjust enrichment law (i.e., three years instead of one year) and the new special rules for cases of personal injury, which now benefit from a 20-year absolute limitation period.

        Transitional provisions / application of the revised statute of limitations to pre-existing claims

        The longer limitation periods under the revised CO apply to any claims that are not yet time-barred when the revision enters into force (i.e., on 1 January 2020; revised Art. 49 para. 1, Final Title of the Swiss Civil Code). In other words, the limitation periods of any claims that do not become time-barred until 31 December 2019 at the latest will be prolonged. This is of particular relevance with regard to claims based on tort and unjust enrichment; the short one-year relative limitation periods under the current law will be extended by another two years.

        In contrast, the current law remains applicable in case the revised statute of limitations provides for shorter limitation periods (revised Art. 49 para. 2, Final Title of the Swiss Civil Code). This concerns, in particular, contractual claims in cases of personal injury. The new three-year relative limitation period under the revised law might not apply to such claims, as the current statute of limitations does not provide for a relative limitation period at all.

        Further changes brought by the revision

        In addition to the changes of the limitation periods set out above, the revision of the statute of limitations contains numerous further modifications. Some of them are listed in the following:

        1. Limitation periods do not commence or are suspended in the event that a claim cannot be asserted for objective reasons before any court worldwide (revised Art. 134 para. 1 no. 6 CO). The current law provides for such non-commencement or suspension only if the claim cannot be brought before a Swiss court.
        2. Parties to a dispute may agree in writing that limitation periods shall be suspended during settlement discussions, mediation proceedings or other out-of-court settlement proceedings (revised Art. 134 para. 1 no. 8 CO).
        3. Once a limitation period has commenced to run, waivers of statute of limitation defenses are admissible, but must not exceed ten years (revised Art. 141 para. 1 CO). Any such waivers must be in writing (new Art. 141 para. 1bis CO).
        4. In general terms and conditions (“GTC”), statute of limitation defenses may be waived by the party who makes use of the GTCs only. In contrast, a waiver by the party on whom the GTCs are imposed (e.g., consumers) is ineffective (new Art. 141 para. 1bis CO).
        5. The limitation period for an actio pauliana under the Swiss Debt Enforcement and Bankruptcy Act (“DEBA”) is extended to from currently two years to three years after service of a loss certificate, the opening of bankruptcy proceedings or the confirmation of a composition agreement with an assignment of assets (whichever is applicable; revised Art. 292 DEBA).

        If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.

        Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.

        In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.

        Europe

        Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.

        Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.

        Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.

        Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.

        Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.

        However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.

        Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?

        If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.

        An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.

        The race to regulating DLT in Europe

        Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.

        EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.

        Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.

        In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.

        France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.

        Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.

        Conclusions

        To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.

        To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.

        The author of this post is Alessandro Mazzi.

        Renato Bucher

        业务领域

        • 代理中介
        • 反垄断
        • 契约
        • 分销协议
        • 特许经营
        联系方式 Renato

        写信给 Renato





          阅读 Legalmondo 的隐私政策
          This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

          EU – Distributed ledger technology – What happened in 2018

          2019年1月3日

          • 欧洲
          • 契约
          • Information Technology

          This week the Interim Injunction Judge of the Netherlands Commercial Court ruled in summary proceedings, following a video hearing, in a case on a EUR 169 million transaction where the plaintiff argued that the final transaction had been concluded and the defendant should proceed with the deal.

          This in an – intended – transaction where the letter of intent stipulates that a EUR 30 million break fee is due when no final agreement is signed.

          In addition to ruling on this question of construction of an agreement under Dutch law, the judge also had to rule on the break fee if no agreement was concluded and whether it should be amended or reduced because of the current Coronavirus / Covid-19 crisis.

          English Language proceedings in a Dutch state court, the Netherlands Commercial Court (NCC)

          The case is not just interesting because of the way contract formation is construed under Dutch law and application of concepts of force majeure, unforeseen circumstances and amendment of agreements under the concepts of reasonableness and fairness as well as mitigation of contractual penalties, but also interesting because it was ruled on by a judge of the English language chamber of the Netherlands Commercial Court (NCC).

          This new (2019) Dutch state court offers a relatively fast and cost-effective alternative for international commercial litigation, and in particular arbitration, in a neutral jurisdiction with professional judges selected for both their experience in international disputes and their command of English.

          The dispute regarding the construction of an M&A agreement under Dutch law in an international setting

          The facts are straightforward. Parties (located in New York, USA and the Netherlands) dispute whether final agreement on the EUR 169 million transaction has been reached but do agree a break fee of €30 million in case of non-signature of the final agreement was agreed. However, in addition to claiming there is no final agreement, the defendant also argues that the break fee – due when there is no final agreement – should be reduced or changed due to the coronavirus crisis.

          As to contract formation it must be noted that Dutch law allows broad leeway on how to communicate what may or may not be an offer or acceptance. The standard is what a reasonable person in the same circumstances would have understood their communications to mean.  Here, the critical fact is that the defendant did not sign the so-called “Transaction Agreement”. The letter of intent’s binary mechanism (either execute and deliver the paperwork for the Transaction Agreement by the agreed date or pay a EUR 30 million fee) may not have been an absolute requirement for contract formation (under Dutch law) but has significant evidentiary weight. In M&A practice – also under Dutch law – with which these parties are thoroughly familiar with, this sets a very high bar for  concluding a contract was agreed other than by explicit written agreement. So, parties may generally comfortably rely on what they have agreed on in writing with the assistance of their advisors.

          The communications relied on by claimant in this case did not clear the very high bar to assume that despite the mechanism of the letter of intent and the lack of a signed Transaction Agreement there still was a binding agreement. In particular attributing the other party’s advisers’ statements and/or conduct to the contracting party they represent did not work for the claimant in this case as per the verdict nothing suggested that the advisers would be handling everything, including entering into the agreement.

          Court order for actual performance of a – deemed – agreement on an M&A deal?

          The Interim Injunction Judge finds that there is not a sufficient likelihood of success on the merits so as to justify an interim measure ordering the defendant to actually perform its obligations under the disputed Transaction Agreement (payment of EUR 169 million and take the claimant’s 50% stake in an equestrian show-jumping business).

          Enforcement of the break fee despite “Coronavirus”?

          Failing the conclusion of an agreement, there was still another question to answer as the letter of intent mechanism re the break fee as such was not disputed. Should the Court enforce the full EUR 30 million fee in the current COVID-19 circumstances? Or should the fee’s effects be modified, mitigated or reduced in some way, or  the fee agreement should even be dissolved?

          Unforeseen circumstances, reasonableness and fairness

          The Interim Injunction Judge rules that the coronavirus crisis may be an unforeseen circumstance, but it is not of such a nature that, according to standards of reasonableness and fairness, the plaintiff cannot expect the break fee obligation to remain unchanged. The purpose of the break fee is to encourage parties to enter into the transaction and attribute / share risks between them. As such the fee limits the exposure of the parties. Payment of the fee is a quick way out of the obligation to pay the purchase price of EUR 169 million and the risks of keeping the target company financially afloat. If financially the coronavirus crisis turns out less disastrous than expected, the fee of EUR 30 million may seem high, but that is what the parties already considered reasonable when they waived their right to invoke the unreasonableness of the fee. The claim for payment of the EUR 30 million break fee is therefore upheld by the Interim Injunction Judge.

          Applicable law and the actual practice of it by the courts

          The relevant three articles are in this case articles 6:94, 6:248 and 6:258 of the Dutch Civil Code. They relate to the mitigation of contractual penalties, unforeseen circumstances and amendment of the agreement under the tenets of reasonableness and fairness. Under Dutch law the courts must with all three exercise caution. Contracts must generally be enforced as agreed. The parties’ autonomy is deemed paramount and the courts’ attitude is deferential. All three articles use language stating, essentially, that interference by the courts in the contract’s operation is allowed only to avoid an “unacceptable” impact, as assessed under standards of reasonableness and fairness.

          There is at this moment of course no well- established case law on COVID-19. However, commentators have provided guidance that is very helpful to think through the issues. Recently a “share the pain” approach has been advocated by a renowned law Professor, Tjittes, who focuses on preserving the parties’ contractual equilibrium in the current circumstances. This is, in the Court’s analysis, the right way to look at the agreement here. There is no evidence in the record suggesting that the parties contemplated or discussed the full and exceptional impact of the COVID-19 crisis. The crisis may or may not be unprovided for.  However, the court rules in the current case there is no need to rule on this issue. Even if the crisis is unprovided for, there is no support in the record for the proposition that the crisis makes it unacceptable for the claimant to demand strict performance by the defendant. The reasons are straightforward.

          The break fee allocates risk and expresses commitment and caps exposure. The harm to the business may be substantial and structural, or it may be short-term and minimal. Either way, the best “share the pain” solution, to preserve the contractual equilibrium in the agreement, is for the defendant to pay the fee as written in the letter of intent. This allocates a defined risk to one party, and actual or potential risks to the other party. Reducing the break fee in any business downturn, the fee’s express purpose – comfort and confidence to get the deal done – would not be accomplished and be derived in precisely the circumstances in which it should be robust. As a result, the Court therefore orders to pay the full EUR 30 million fee. So the break fee stipulation works under the circumstances without mitigation because of the Corona outbreak.

          The Netherlands Commercial Court, continued

          As already indicated above, the case is interesting because the verdict has been rendered by a Dutch state court in English and the proceedings where also in English. Not because of a special privilege granted in a specific case but based on an agreement between parties with a proper choice of forum clause for this court. In addition to the benefit to of having an English forum without mandatorily relying on either arbitration or choosing an anglophone court, it also has the benefit of it being a state court with the application of the regular Dutch civil procedure law, which is well known by it’s practitioners and reduces the risk of surprises of a procedural nature.  As it is as such also a “normal” state court, there is the right to appeal and particularly effective under Dutch law access to expedited proceeding as was also the case in the example referred to above. This means a regular procedure with full application of all evidentiary rules may still follow, overturning or confirming this preliminary verdict in summary proceedings.

          Novel technology in proceedings

          Another first or at least a novel application is that all submissions were made in eNCC, a document upload procedure for the NCC. Where the introduction of electronic communication and litigation in the Dutch court system has failed spectacularly, the innovations are now all following in quick order and quite effective. As a consequence of the Coronavirus outbreak several steps have been quickly tried in practice and thereafter formally set up. At present this – finally – includes a secure email-correspondence system between attorneys and the courts.

          And, also by special order of the Court in this present case, given the current COVID-19 restrictions the matter was dealt with at a public videoconference hearing on 22 April 2020 and the case was set for judgment on 29 April 2020 and published on 30 April 2020.

          Even though it is a novel application, it is highly likely that similar arrangements will continue even after expiry of current emergency measures. In several Dutch courts videoconference hearings are applied on a voluntary basis and is expected that the arrangements will be formalized.

          Eligibility of cases for the Netherlands Commercial Court

          Of more general interest are the requirements for matters that may be submitted to NCC:

          • the Amsterdam District Court or Amsterdam Court of Appeal has jurisdiction
          • the parties have expressly agreed in writing that proceedings will be in English before the NCC (the ‘NCC agreement’)
          • the action is a civil or commercial matter within the parties’ autonomy
          • the matter concerns an international dispute.

          The NCC agreement can be recorded in a clause, either before or after the dispute arises. The Court even recommends specific wording:

          “All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”).”

          The phrase “to the exclusion of the jurisdiction of any other courts” is included in light of the Hague Convention on Choice of Court Agreements. It is not mandatory to include it of course and parties may decide not to exclude the jurisdiction of other courts or make other arrangements they consider appropriate. The only requirement being that such arrangements comply with the rules of jurisdiction and contract. Please note that choice of court agreements are exclusive unless the parties have “expressly provided” or “agreed” otherwise (as per the Hague Convention and Recast Brussels I Regulation).

          Parties in a pending case before another Dutch court or chamber may request that their case be referred to NCC District Court or NCC Court of Appeal. One of the requirements is to agree on a clause that takes the case to the NCC and makes English the language of the proceedings. The NCC recommends using this language:

          We hereby agree that all disputes in connection with the case [name parties], which is currently pending at the *** District Court (case number ***), will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or ”NCC District Court). Any action for interim measures, including protective measures, available under Dutch law will be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCC Court of Appeal”).

          To request a referral, a motion must be made before the other chamber or court where the action is pending, stating the request and contesting jurisdiction (if the case is not in Amsterdam) on the basis of a choice-of-court agreement (see before).

          Additional arrangements in the proceedings before the Netherlands Commercial Court

          Before or during the proceedings, parties can also agree special arrangements in a customized NCC clause or in another appropriate manner. Such arrangements may include matters such as the following:

          • the law applicable to the substantive dispute
          • the appointment of a court reporter for preparing records of hearings and the costs of preparing those records
          • an agreement on evidence that departs from the general rules
          • the disclosure of confidential documents
          • the submission of a written witness statement prior to the witness examination
          • the manner of taking witness testimony
          • the costs of the proceedings.

          Visiting lawyers and typical course of the procedure

          All acts of process are in principle carried out by a member of the Dutch Bar. Member of the Bar in an EU or EEA Member State or Switzerland may work in accordance with Article 16e of the Advocates Act (in conjunction with a member of the Dutch Bar). Other visiting lawyers may be allowed to speak at any hearing.

          The proceedings will typically follow the below steps:

          • Submitting the initiating document by the plaintiff (summons or request as per Dutch law)
          • Assigned to three judges and a senior law clerk.
          • The defendant submits its defence statement.
          • Case management conference or motion hearing (e.g. also in respect of preliminary issues such as competence, applicable law etc.) where parties may present their arguments.
          • Judgment on motions: the court rules on the motions. Testimony, expert appointment, either at this stage or earlier or later.
          • The court may allow the parties to submit further written statements.
          • Hearing: the court interviews the parties and allows them to present their arguments. The court may enquire whether the dispute could be resolved amicably and, where appropriate, assist the parties in a settlement process. If appropriate, the court may discuss with the parties whether it would be advisable to submit part or all of the dispute to a mediator. At the end of the hearing, the court will discuss with the parties what the next steps should be.
          • Verdict: this may be a final judgment on the claims or an interim judgment ordering one or more parties to produce evidence, allowing the parties to submit written submissions on certain aspects of the case, appointing one or more experts or taking other steps.

          Continuous updates, online resources Netherlands Commercial Court

          As a final note the English language website of the Netherlands Commercial Court provides ample information on procedure and practical issues and is updated with a high frequence. Under current circumstance even at a higher pace. In particular for practitioners it’s recommended to regularly consult the website. https://www.rechtspraak.nl/English/NCC/Pages/default.aspx

          This is a summary of the approved measures, which unfortunately for both tenants and landlords do not include any public aid or tax relief and just refer to a postponement in the payment of the rent.

          Premises to which they are applied

          Leased premises dedicated to activities different than residential: commercial, professional, industrial, cultural, teaching, amusement, healthcare, etc. They also apply to the lease of a whole industry (i.e. hotels, restaurants, bars, etc., which are the most usual type of businesses object of this deal).

          Types of tenants

          • Individual entrepreneurs or self-employed persons who were registered before Social Security before the declaration of the state of alarm on March 14th, 2020
          • Small and medium companies, as defined by article 257.1 of the Capital Companies Act: those who fulfil during two consecutive fiscal years these figures: assets under € 4 million, turnover under € 8 million and average staff under 50 people

          Types of landlords

          In order to benefit from these measures, the landlord should be a housing public entity or company or a big owner, considering as such the individuals or companies who own more than 10 urban properties (excluding parking places and storage rooms) or a built surface over 1.500 sqm.

          Measures approved

          The payment of the rent is postponed without interest meanwhile the state of alarm is in force, but in any case, for a maximum period of four months. Once the state of alarm is overcome, and in any case in a maximum term of four months, the postponed rents should be paid along a maximum period of two years, or the duration of the lease agreement, should it be less than two years.

          For landlords different to those mentioned above

          The tenant could apply before the landlord for the postponement in the payment of the rent (but the landlord is not obliged to accept it), and the parties can use the guarantee that the tenant should mandatorily have provided at the beginning of any lease agreement (usually equal to two month’s rent, but could be more if agreed by the parties), in full or in part, in order to use it to pay the rent. The tenant will have to provide again the guarantee within one year’s term, or less should the lease agreement have a shorter duration.

          Activities to which it is applied

          Activities which have been suspended according to the Royal Decree that declared the state of alarm, dated march, 14ht, 2020, or according to the orders issued by the authorities delegated by such Royal Decree. This should be proved through a certificated issued by the tax authorities.

          If the activity has not been directly suspended by the Royal Decree, the turnover during the month prior to the postponement should be less than 75% of the average monthly turnover during the same quarter last year. This should be proved through a responsible declaration by the tenant, and the landlord is authorised check the bookkeeping records.

          Term to apply and procedure

          The tenant should apply for these measures before the landlord within one month’s term from the publication of the Royal Decree-law, that is, from April 22nd, 2020, and the landlord (in case belongs to the groups mentioned in point c) is obliged to accept the tenant’s request, except if both parties have already agreed something different. The postponement would be applied to the following month.

          As the state of alarm was declared more than one month ago (March 14th), landlords and tenants have already been reaching some agreements, for example 50% rent reduction during the state of alarm, and 50% rent postponement during the following 6 months. Tenants who do not reach an agreement with the landlord could face an eviction procedure, however court procedures are suspended during the state of alarm. We have also seen some abusive non-payment of rent by tenants.

          When is becomes impossible to reach an agreement with the landlord, tenants have the legal remedy of claiming in Court for the application of the “rebus sic stantibus” principle, which was highly demanded during the 2008 financial crisis but very seldom applied by the Courts. This principle is aimed to re-balance the parties’ obligations when their situation had deeply changed because of unforeseen circumstances beyond their control. This principle is not included in the Spanish Civil Code, but the Supreme Court has accepted its application, in a very restricted way, in some occasions.

          Summary – What can we learn in the time of Covid-19 that can be used in mediation? And what can we learn from mediation to be used in this crisis?

          As you know, mediation is a way to solve conflicts in which the parties keep in their hands the possible solution. They do not need to come to a third party (judge or arbitrator) to impose the answer to them. Parties can imagine more freely what they need, and how to solve their differences.

          Some of the elements and techniques mediators use in a mediation can also be used in and learnt from the current Time of Covid-19. And the current crisis also helps us to understand why they are so important in mediation.

          Cooperation to get the solution is better than unilateral and imposed decisions

          We usually tend to think that cooperation is a sign of weakness and that we recur to it only if we cannot impose or view or win our case. However, as in the time of Covid-19 where countries, scientists and people should fight together, when facing a conflict cooperation and going beyond your positions brings you the possibility to explore solutions that otherwise remain hidden.

          « Now it is increasingly recognized that there are cooperative ways of negotiating our differences and that even if a “win-win” solution cannot be found, a wise agreement can still often be reached that is better for both sides than the alternative. […]

          Three points about shared interests are worth remembering. First, shared interests lie latent in every negotiation. They may not be immediately obvious. Second, shared interests are opportunities, not godsends. Third, stressing your shared interests can make the negotiation smoother and more amicable. » [Fisher, Richard; Ury, William. “Getting to Yes: Negotiating an agreement without giving in”].

          Listening is highly effective

          In the time of Covid-19 we tend to accept better information that confirms our beliefs and we accept better indications that are in accordance with our preferences and beliefs. Nevertheless, also in this time, listening is of essential importance to understand the causes and solutions.

          A mediator will always listen to the parties and will help them to do the same. Listening the other’s side arguments, its explanation of the facts, interests and needs, the reasons for its decisions… is also of utmost importance to find a joint solution.

          «Whether you are a neutral third party (professional facilitator, friend, or manager) or one of the participants, as you listen to all the stories, you begin to sense the best solution. » [Levine, Stewart. “Getting to Resolution: Turning Conflict Into Collaboration.”]

          A solution for me can also be a solution for you

          In the time of Covid-19 it seems clear to all of us that a common solution is the only possible one. A vaccine will save the entire world. In mediation, the main benefit is to understand that, unlike a court judgement or arbitral award, a joint (not imposed) solution is possible and a benefit for me does not imply a damage or a lost for my opponent.

          «A mediator works to understand each disputant’s perspective and to look for the value in it. In this role, you refrain from judging whose side is right or wrong. Instead, you try to see the merit in each side’s perspective. » [Shapiro, Daniel. “Building Agreement”].

          We master the solution and we create the agreement in a safe environment

          The solution to the current crisis does not only depend on the authorities and on the health professionals. A great part of the solution relies on everybody’s participation, washing our hands, respecting the social distance, staying safe at home avoiding contagion and the collapse of hospitals.

          In court we leave the decision of the conflict in the hands of a third party –the judge, the arbitrator­–. In a mediation, on the contrary, the solution remains in our hands. We know what our interests are, we create our agreement. Our imagination is our ally in finding the solution together with the counterparty and the assistance and experience of the mediator who does not impose it but helps the parties to find it. Quite often, what parties could get in mediation goes far beyond what a judge would’ve been able to grant. And this in a confidential environment.

          «The Sage is self-effacing and scanty of words. When his task is accomplished and things have been completed, all the people say, “We ourselves have achieved it!” » [Lao Tzu]

          Emotions do matter

          Good and bad emotions are inevitable. Particularly in periods of uncertainty, crisis and loose of control, we all face strong emotions. This is true in situations like this Covid-19 and in all conflicts, and not only in personal ones. Egos, envies, fears, anxieties… are also part of our day-to-day life, work and business, but they are rarely considered in courts when solving your conflicts. A mediator helps you to take them into account in a safe environment and as a part of the conflict itself.

          «Solving problems seems easier than talking about emotions. The problem is that when feelings are at the heart of what’s going on, they are the business at hand and ignoring them is nearly impossible. » [Stone, Douglas. “Difficult Conversations: How to Discuss What Matters Most”].

          Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19, even though it affects and produces effects in many different legal fields, does not include any reference to contracts for leases of real estate, or houses, premises or offices.

          The purpose of this note is to analyze the effects of the situation of the State of Alarm regarding those leases of offices or premises that have been forced to close in application of the decree; those others that remain totally or partially open and in operation, although with a reduced or minimal activity, in principle are not subject to the conclusions reached below without prejudice to the fact that there are individualized cases to which, despite the fact that there is not a complete closure, reasonably and logically can be applied to them.

          It is not excluded in any way that in the event of an extension of the validity of the State of Alarm, a regulation that affects the leasing contracts could be published, but for the moment this has not happened. If this were to happen, the content of said norm would apply.

          Based on the principle of freedom of covenants enshrined in art. 1255 of the Spanish Civil Code, which allows the parties signing the contract to agree (i) what scenarios and situations should be considered as constituting cases of Force Majeure and Act of God and (ii) what the contractual consequences of such scenarios should be, the first exercise that must be done is to check if the contract includes a regulatory clause of Force Majeure and its effects; if so, such clause must be followed and its analysis is left out of this note.

          In the absence of express regulation in the contract, the provisions of the Civil Code and specifically article 1105 would apply.

          COVID-19 as Force Majeure

          COVID-19 is an event that in principle meets the requirements of the Civil Code to be classified as an event of Force Majeure (art. 1105 Civil Code) since:

          • It is a foreign act and not attributable to the contractor who is the debtor of the benefit or obligation.
          • It is unpredictable, or if it were said to be “predictable”, it is certainly inevitable.
          • The event in question, the pandemic, must be a cause and result in the breach of the obligation, that is, there must be a causal link.

          Therefore, fulfilling the three requirements, the first conclusion that we reach is that very foreseeably, the Spanish Courts will classify as “Force Majeure” the situation caused by COVID 19 when a judicial dispute is raised in which such matter is discussed between litigants. We will now analyze the consequences of this status.

          Consequences of considering COVID-19 as an event of Force Majeure

          Most of the doctrine and jurisprudence understand that the effects of classifying a scenario as a case of Force Majeure in principle are:

          • Total and definitive impossibility of complying; releasing the debtor from the fulfillment of the obligation.
          • Partial inability to comply; the debtor is released only in the part that it is impossible to fulfill, but still bound by the part that can be carried out.
          • Temporary inability to comply; the debtor is released from the responsibility for default as long as the exceptional situation persists.

          Now, let us analyze how it would affect to considerate the epidemic as Force Majeure in relation to lease agreements for uses other than housing.

          Regarding the payment of rent

          The question to answer is if the classification of the current pandemic situation as a case of Force Majeure frees the tenant (whose premises have been forced to close by order of the government authority) from the obligation to pay the rent while said closing obligation persists, including in the concept of “release” different alternatives: total or partial cancellation and / or total or partial postponement.

          We are meeting these days with a frequent reaction among some tenants, who, unilaterally have informed their landlords that considering COVID 19 an event of force majeure and having been forced to close the premises / office, they suspend the payment of the rent while said situation remains. They do not terminate the contract, they do not hand over the possession, they remain in it (the premises remain closed and not operational) but they suspend the payment (it is not clear whether suspending in this case means liberating himself from the payment of the rent or postponing its payment for when the Force Majeure scenario ends).

          Arguments against liberation

          As much as this attitude can be considered “understandable” from the perspective of the lessee, not from the point of view of the lessor, said consideration runs into an obstacle: the interpretation of the Force Majeure made by the Supreme Court regarding pecuniary payment obligations, according to the Civil Sentence of May 19, 2015:

          “Not being able to consider, in the case of pecuniary debts, the subjective impossibility – insolvency – nor the objective or formal imposition, the doctrine concludes that it is not possible to imagine that if the impossibility is due to a fortuitous event it could have as effect the extinction of the obligation.

          The exoneration of the debtor by fortuitous event is not absolute, it has exceptions, as provided for in article 1105 CC, and one of them, by application of the “genus nunquam perit” principle, would be in cases of obligations to deliver generic things.

          In such circumstances, the pecuniary debtor is obliged to fulfill the main obligation, without the economic adversities freeing him from it, since what is owed is not something individualized that has perished, but something generic such as money”.

          In conclusion: it does not seem that this jurisprudential criterion allows to defend that the fulfillment of the pecuniary obligations is released, extinguished or that its breach is justified in cases of Force Majeure, therefore the pecuniary debtor, in this case the lessee, in application of this criterion and due to the generic condition of the money, would be obliged to fulfill his main obligation not being freed from it by the unforeseen economic adversities on the basis of Force Majeure.

          Arguments in favor of liberation: art. 1575 of the Civil Code

          Having said the foregoing, reference should be made to an article of the Civil Code that, with certainty, will be profusely cited in the upcoming judicial conflicts.

          The art. 1575, dealing with the leasing of rustic estates, recognizes the lessee’s right to the reduction of rent in the event of loss of more than half of the fruits (unless otherwise agreed) in “fortuitous, extraordinary and unforeseen cases … such as fire, war, plague, unusual flood, locust, earthquake or another equally unusual that the contractors have not been able to rationally foresee ”.

          Is this article, foreseen for rustic leases, applicable to urban leases?

          The art. 4.1 CC allows the analogical application of the rules when (i) they do not contemplate a specific assumption and (ii) they regulate a similar situation in which “identity of reason” may be appreciated.

          The Sentence of the Supreme Court from January 15, 2019, that solved a conflict of a lease of a building used as hotel, in which the tenant had sought the reduction of the rent under the clause “rebus sic stantibus” by the crisis of 2008 and had alleged in his favor the application of art. 1575, established:

          “The argumentation of the appealed judgment rejecting the claim to lower the agreed price is also not contrary to the legal criterion that follows from art. 1575 CC, which is the rule that allows the reduction of income in the leasing of productive assets that do not derive from risks of the business itself, it also requires that the loss of benefits originates from extraordinary and unforeseen fortuitous cases, something that by its own rarity could not have been foreseen by the parties, and that the loss of fruits is more than half of the fruits. In this particular case, none of these circumstances concur. The decrease in rents comes from market developments, the parties anticipated the possibility that in some years the profitability of the hotel would not be positive for the lessee and the losses alleged by NH in the operation of the Almería hotel are less than fifty per hundred, without taking into account that the overall result of his activity as manager of a hotel chain is, as the Audience considers proven in view of the consolidated management report, positive”.

          The Supreme Court does not admit the application of art. 1575, but not because it is considered not applicable to non-rustic leases, but because the Court concludes that the requirements are not fulfilled since the 2008 crisis was neither unpredictable and because the lessee’s losses do not exceed 50%.

          But, that interpretation of the Supreme Court together with the wording of art. 4.1 CC would support the claim of the lessee who has no incomes during the State of Alarm to demand a reduction in rental fee that fits the principle of proportionality.

          Regarding early termination at the request of the lessee

          However, we may find situations in which the lessee considering the current situation, decides to terminate the lease in advance, delivering the premises to the lessor.

          They are cases in which the early termination of the contract is intended, without respecting (i) or the mandatory term (ii) or the previous notice, in both cases under the hypothesis that they are thus regulated in the contract.

          In these scenarios, we understand that it may be defendable that, due to the situation of force majeure caused by COVID 19 and in application of art. 1105 of the CC, the lessee is exempt from the obligation:

          1. To respect the mandatory term of the lease
          2. To give prior notice to the lessor in case of early termination of the contract

          In both cases, the contract would be terminated with the delivery of possession of the premises, without prejudice to having to respect the other obligations set forth in the contract for termination and delivery, provided that they are not equally affected by the situation of Force Majeure.

          Our opinion is that, also in application of Article 1,105 of the CC, the thesis that the lessee would be released from any obligation to compensate damages to the lessor for said advance resolution or breach of the obligatory duration of the contract could be defendable before the Courts.

          Conclusion

          In conclusion, when the Courts decide on the effects of the current pandemic (that they will surely classify as Force Majeure), and how this will affect the obligations of leaseholders who have been forced to close their business, our opinion is the following:

          • Regarding the obligation to pay the rent, despite the contrary criterion of the sentence from May 19, 2015, we find defendable the analogue application of art. 1575 of the CC, based as well on the Supreme Court Sentence from January 15, 2019, in order to demand a proportional and equitable reduction of the rent.
          • Regarding the power of the leaseholder to terminate the contract in advance, in case the leaseholder hands the possession of the property to the lessor, we find defendable to exonerate the leaseholder from complying with the advance notice or mandatory term in case provided in the contract, without the obligation to indemnify the lessor for this reason.

          Application of the Rebus Sic Stantibus clause (“RSS” clause)

          We will analyze below if the RSS clause can be applicable to the case that we are studying and with which consequences.

          Requirements of the RSS clause (Latin aphorism that means “things thus standing”)

          The principle RSS operates as an intrinsic clause (that is, implicit, without the need to expressly agree by the parties) in the contractual relationship, which means that the stipulations established in a contract are so in view of the concurrent circumstances at the time, that is, “things thus standing”, so that any substantial and unforeseen alteration of the same could lead to the modification of the contractual content.

          The RSS clause is not regulated in any article in our laws; It is a doctrinal construction that the jurisprudence has traditionally admitted (examples among many other Supreme Court Sentences from June 30, 2014, February 24, 2015, January 15, 2019, July 18, 2019), with great caution, only in certain cases, and requiring the following requirements:

          • That there has been an extraordinary alteration in the circumstances of the contract, at the time that it must be fulfilled, in relation to those present at the time the parties entered the contract.
          • To analyze whether an incident can determine the extraordinary alteration of the circumstances that gave meaning to the contract, we must a) contrast the scope of said alteration regarding the meaning or purpose of the contract and the commutativity or performance balance thereof; and b) the “normal risk” inherent or derived from the contract must be excluded.
          • That there has been an exorbitant disproportion, out of all calculation, between the obligations of the contracting parties, causing an imbalance between them.
          • That the above occurs because of radically unpredictable circumstances.
          • That there is no other remedy to overcome the situation.

          Historically, our courts have been very reluctant to apply RSS, although since the economic crisis of 2008-2012 there has been a certain change in criteria and greater jurisprudential receptivity.

          Consequences of the application of RSS

          The doctrine establishes that the application of the RSS does not have in principle terminating effects on the contract, but only modifying effects, aimed at compensating the imbalance of obligations between the parties;  the doctrine establishes that this only applies to long-term contracts or successive contracts with deferred execution.

          In application of the good faith principle, the reaction to an event of fortuitous event, force majeure or, in general, an event that generates a disproportion between the parties, such as that regulated by the RSS clause, should be the amendment of the contract to rebalance the obligations between the parties, and only in the event of material impossibility to comply with the obligations, the resolution of the obligation, in both cases without compensation for non-compliance.

          For this reason, in relation to leasing contracts and in case of closure of the premises by mandatory mandate, we understand that the RSS clause may be:

          • alleged by the leaseholder to request or urge the lessor to downsize or postpone payment.
          • estimated by the judges, when these assumptions are debated before the Courts, when accepting such contractual amendment as equitable and legitimate in order to compensate the imbalance generated by the effects of COVID 19.

          To summarize, the RSS clause can be a tool for the leaseholder that has had to close its premises during the State of Alarm, when negotiating with the lessor an amendment of the contract, trying to postpone the rent while the State of Alarm or negotiating a discount.

          We should bear in mind:

          • That the RSS clause is unavoidably applicable on a casuistic basis, there are no generalizations and it will be necessary to take into account the effect caused by COVID 19 in each specific contractual relationship (Supreme Court Sentence from June 30, 2014 and February 24, 2015) and the real imbalance of benefits produced, and
          • That, as we have said, the Courts are generally reluctant to apply this clause, that they only apply in the absence of any other legal tool and in situations in which the maintenance of the contractual status quo reveals a manifest “injustice ”and a evident and resounding imbalance between the performance of the parties.

          Does this mean that the leaseholder may impose on the lessor a modification of the economic conditions of the contract under the RSS clause (postponement or total or partial cancellation of the payment)?

          We cannot assure this, what we think is that the application of this RSS clause should:

          • Justify a reasonable request from the leaseholder to temporarily change the conditions of the contract (postponement or cancellation, total or partially) that the lessor must reasonably meet.
          • In case of unreasonable refusal of the lessor, we recommend to document as much as possible leaseholder´s request and the possible negotiations or refusal, in order to substantiate a suspension of the payment of the rent, total or partial, during the State of Alarm aimed, not to extinguish his obligation, but to postpone it.

          We will have to wait for the reaction of the Courts when they judge these conflicts, but if we dare to anticipate that it is quite possible that the judicial tendency will be to grant protection to the leaseholder with support in the RSS clause and the principle of business preservation, when it comes to validating certain modifying effects regarding the payment obligations of the leaseholder (total or partial remission of the rent payment during the pandemic crisis, postponement, or partial postponement).

          In any case, it will be essential to prove, that the behavior of the leaseholder seeking protection in the RSS clause to amend the contract, has been strictly adjusted to the principle of good faith (Supreme Court Sentence from April 30, 2015).

          It will also be important to analyze case by case why the displacement of the risk derived from the “exceptional and unforeseen event” from one contractor to the other is justified (Supreme Court Sentence from January 15, 2015) and could well be defended (Supreme Court Sentence from July 18, 2019) that both contracting parties must divide and assume the consequences between the two of them. The judicial decisions will vary in each specific case.

          Conclusions and Recommendations

          In conclusion, it seems that the leaseholder would have two instruments in order to try to successfully suspend or postpone the payment of the rents, the RSS clause and the principle of Force Majeure.

          In our view, the replacement of the contractual balance altered by the exceptional event, may consist of either an extension of the lease payment terms or the application of a total, or partial cancellation of the rental payment obligation while it lasts the State of Alarm, but we understand that it will be defendable that the delay in the payment may not give rise neither to the termination of the contract under art. 1124 Cc nor to the requirement of damages art. 1105 Cc, therefore, will not empower the lessor to urge eviction.

          Therefore, the steps to be followed in each case would be:

          • Carry out an examination of the contract to check whether force majeure and acts of God are regulated and if the current situation is in accordance with the contract provisions.
          • Should nothing be set forth at the contract, and in case the leaseholder has had to close the premises or office, notify the other party of this circumstance and try to negotiate a novation of the lease requesting:
            • Waiver of the payment obligation during the Alarm State.
            • The application of a discount on the payment obligations with both parties sharing the effects of the pandemic, in a proportion to be agreed.
            • Postponement of payment obligations until the premises or office can be reopened with a payment plan for the deferred debt.

          If it is not possible to reach an agreement, it is advisable to try to maintain evidence that the parties have acted in good faith trying to reach a negotiated solution and at the extreme (from the leaseholder´s point of view) announce, without waiting to receive a communication or claim from the Lessor, the suspension of the rental fee payment until reopening of the premises/offices, justifying the same in the Alarm State.

          《法国商业法》规定，贸易商在未给予充分书面通知的情况下终止书面合同或非正式商业关系(第442-1.1条)将被制裁。在过去的二十年中，这已成为商业关系或合同终止（全部或部分终止）时所有补偿行为（最高可达24个月的毛利率以及其他损害赔偿）的经常性法律依据。

          因此，与法国公司签约的外国贸易商应尽量避开该规则的管辖范围 (第一部分)，如果不能，则应理解并控制其实施 (第二部分)。

          简而言之

          外国公司如何避免或控制与法国法律规定的“突然终止商业关系”有关的风险？

          与法国公司做生意的外国公司应该这样做：

          • 与法国供应商或客户尽快达成书面（框架）协议，即使是非常简单的关系也是如此；
          • 规定一项有利于外国法院或仲裁以及外国适用法律的条款，而如果不能选择该条款，则只能服从法国法院和法律。

          外国公司如何才能掌控法国法律规定的“突然终止商业关系”的风险?

          与法国公司做生意的外国公司应该这样做：

          • 要知道，本条适用于几乎所有类型的商业关系或合同，无论是书面的还是非书面的，无论是定期的还是非定期的;
          • 检查其关系/合同是否期限足够且正常和重要，以及对方是否有合理理由相信该关系/合同会继续维持；
          • 给出终止或不续约（甚至是重大修改）的书面通知，其期限主要考虑到关系的持续时间，与合同通知的时限无关；
          • 谨慎地劝告当事方在遭遇不可抗力和严重过失的情况下，搁置“突然终止”；
          • 如果没有充分的通知，则预计赔偿金额为为每月平均毛利率与未获批准的事先通知的期限之积。

          如何避免适用法国的“突然终止”规则?

          在国际事务中，外国公司必须预见其关系是否将受到法国法律的管辖，并且在发生争议的情况下，是否将其关系提交到法国法院。

          “突然终止合同”的法律适用范围是什么?

          对于一个外国公司来说，要正确地掌握适用于“突然终止”的法国法律冲突法规则框架是相当困难的。巴黎上诉法院在2018年9月19日的裁决（RG 16/05579，DES / 娇韵诗）中隐含提及Granarolo欧盟裁决（07 14 16，N°C196 / 15），该裁决将合同资格扩展至大多数业务关系，以改善可预见性，来应对外国公司试图排除法国法律及其“突然终止”规则的行为。

          突然终止书面合同或“默认合同关系”

          根据关于合同适用法律的罗马一号法规 (EC No 593 / 2008，2008年6月17日)：

          • 如果当事各方选择了外国法律：选择外国适用法律的条款将是有效的，并将受到法国法官的尊重 (服从OMR，请参阅下文)，前提是当事各方选择的法律是明示或确定的。
          • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为它可能也是分销商/加盟商所在国的法律等，或是提供合同服务功能的当事方所在国家/地区的法律。

          突然终止“非默认合同关系”

          如果是非正式关系 (即偶尔下达订单)，法国法官将保留侵权行为资格，并将参考适用于非合同义务法律的《罗马二号条例》(第864/2007号，2007年7月11日)。

          • 如果当事各方选择了外国法律：法国法官应执行草拟的外国法选择条款，条件是该条款明确包含侵权案件。
          • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为这可能是损害发生的国家/地区的法律（无论是发生事件的地点还是造成间接后果的地点），是法国受害者遭受终止结果的总部所在地。

          “突然终止合同”是法国的一项压倒一切的强制性规定吗?

          法国法院的立场相当模糊且令人不满。 简而言之：巴黎商事法庭认为“突然终止”不是OMR，巴黎上诉法院（负责“突然终止”案件的唯一法国上诉法院）却支持OMR资格，而最高法院……对此事保持沉默。尽管罗马一号条例（或罗马二号）第9.1条缺乏严格的推理和理由，但很明显，巴黎上诉法院有司法意愿将“突然终止”归为OMR。 因此，如果向法国法院提出“突然终止”的要求，则该法国法院极有可能排除适用的外国法律，而将其替换为产生于第L 442-1. II条“突然终止”。

          因此，外国公司确保“突然终止”不会妨碍合同的终止或停止续签的唯一可能性，不仅是选择一项适用的外国法律，而且是确保将争端提交外国法官或仲裁庭。

          如何避免法国法院对“突然终止”索赔的管辖权?

          “突然终止”索赔和欧盟内部共同承包商

          欧洲法院的裁决(Granarolo, 2016年7月14日，NC196/15)区分了以下索赔:

          • 书面框架合同或默认合同关系 (仅当欧洲法院所列出的证据由国家法官确定时才存在，即相互承认的关系和承诺的限期，如排他性、特价或交货与付款条件、竞业禁止等)：根据布鲁塞尔一号重铸条例下的管辖权冲突规则，此类索赔具有合同性质；
          • 非正式关系——一种非默认的合同关系 (即不时下达的命令)：在布鲁塞尔一号重铸条例下这样的请求具有侵权性质。

          （a）谁是“突然终止”书面合约或“默契合约关系”的法官?

          • 为了外国法院的利益，管辖权条款将由法国法院执行，即使它是一个不对称的条款 (最高法院，2015年10月7日，Ebizcuss.com / 苹果销售国际)。
          • 在缺乏法院条款选择的情况下，如果以“突然终止”为基础提起诉讼的法国索赔人是服务提供者，例如分销商，代理人等，则法国法院可能具有管辖权 (请参阅欧洲法院 Corman Collins案， 19 12 13，C-9 / 12和布鲁塞尔一号重铸条例第7.1.b.2条)。

          （b）谁是“非默认合同关系”“突然终止”的法官？

          • 我们认为，法国法院可能会继续执行侵权案件中的管辖权条款，特别是明确包含侵权诉讼的条款 (最高法院，1°Ch.Civ.，2017年1月18日，n°15-26105，里维埃拉汽车/阿斯顿马丁拉贡达有限公司)。
          • 在缺乏法院条款选择权的情况下，法国法院将对“突然终止”索赔具有管辖权，所以由位于发生损害事件地点的法官（布鲁塞尔一号第7.3条）负责，而该地点是“突然终止”生效的地方……即如果法国公司是受害者，该地点就在法国。

          “突然终止”索赔和非欧盟共同承包商

          如果一名法国受害者基于非欧盟公司的“突然终止”向法国法院提出索赔，Granarolo解决方案将不在事实上适用。在非欧盟关系中，法国法官只能继续保留侵权资格。在这种情况下，法国法院可以根据损害事件发生的地点保留其管辖权。然而，即使是基于侵权的索赔，在法国也可以承认管辖权条款。

          “突然终止”索赔和仲裁

          制定一项临时条款或机构仲裁条款可能是规避法国法院管辖权的最安全解决方案。理想情况下，该条款将在法国境外确定仲裁庭的席位。根据仲裁员的胜任力原则，法国法院宣布其自身无能力仲裁，除非仲裁条款明显无效或明显不适用，无论合同或侵权理由如何 (特别参见巴黎上诉法院，2019年9月5日，n / 17/03703)。

          结论：外国公司不应公开管辖权和管辖法律问题。他们必须协商出一个安全港湾，否则，被终止的法国受害人将可能有权向法国法官提出“突然终止”的要求（请参阅下面第2部分的内容）

          如何掌握“突然终止”法律的规则?

          在法国法律适用的情况下，外国公司将面临法国商业法典L442 -1.II条对“突然终止”的制裁。 作为一项初步说明，首先必须知道，“突然终止”责任的执行是通知时间太短的结果。 因此，该方案没有制定自动补偿规则。换句话说，一旦终止的发起人发出了合理的通知，基于该通知的责任就可以被免除。

          “突然终止”的先决条件：已建立的商业关系

          所有合同均受该法律制度的约束，法规中规定了特定终止通知的合同除外，例如商业代理合同和公路分包合同的货物运输。

          首先，必须存在一种可以通过书面合同或事实上当事双方的行为所证明的关系。这种关系可以建立在一系列默认续签的合同或由多个订单实现的正常业务流程基础之上。

          第二，这种关系必须具有既定的特征。没有法律定义，但是判例法年复一年地对这一概念进行了界定，判例法已经建立了一个客观标准和一个更主观的标准。

          (a) 客观标准意味着双方之间有足够长期、经常和重要的关系。关系的持续时间是最重要的标准。这种关系必须是有规律的，也就是说，它不能被打断(太频繁或太长时间)。这种关系最终必须是有意义的，并且在数量或价值上代表双方之间的业务流。

          (b) 主观测试主要侧重于受害人在基于事实层面上认为继续的合同/关系（例如投资要求，几年内的预算等）将走向破裂的合理信念。相反，正是基于对共同的未来缺乏合理信念的结果，即当终止方多次提出招标要求时，终止方可以证明其缺乏稳定的品格 (除非这是一个诡计)。

          提前预计“突然终止”索赔

          (a) 终止可以是全部或部分的

          完全破裂是通过关系的完全终止来实现的，例如终止合同、停止买方发送订单或停止供应商记录订单。但是要处理的最复杂的情况是所谓的部分破裂，它是通过对部分影响关系但不会将其减少为零的部分进行修改而得出的 (例如：价格上涨或下跌，付款或交付条件的改变)。

          (b) 终止必须以合理的事先书面通知为准

          通知必须以书面形式通知。没有书面通知本身就是一种违约行为。通知必须清楚地反映一方当事人全部或部分断绝关系的意愿，并且必须清楚地表明这一意愿。双方必须区分正式违约通知函和随后发出的违约通知（如适用）。在通知期间内，双方必须完全遵守所有合同条件。

          在2019年改革之前，法国法律没有明确规定应遵守的事先通知的期限。如果判例法规定了若干标准，则应当指出，最重要的标准是关系的持续时间。法官还考虑到受害人所占的营业额份额、领土排他性的存在与否、产品的性质和活动的范围、受害者进行投资的重要性（特别是对于所涉关系的投资），最后是经济依赖的状态。法官们发出通知的时间长短不一。对通知的评估是逐案进行的。即使是几乎对于一段关系中的一年，也可能需要一个月的通知时间（根据关系中的其他标准进行上下调整），很难给出一个黄金法则。2019年4月24日的法令根据第l442 -1. i条把合理到期的通知期限限制为18个月。但大部分诉讼仍存在不确定性，因为只有特别长寿或特别敏感的关系，才可能导致高于18个月的通知分配时间。

          法官不受合同规定的合同通知书的约束。但是，如果违约方还违反了合同规定的终止条款和条件，则受害人可以在突然终止的侵权基础上，或违反合同义务的基础上，追究违约方的责任。

          排除“突然终止合同”的情况

          法律制度规定了两种情况，而判例法似乎还规定了其他情况。

          (a) 两个法律例外分别是不可抗力（很少被法院神圣化）和遭受终止的受害者的过失，判例法补充说，这必须是对合同承诺或法律规定（如不尊重排他性、竞业禁止、保密或变更控制责任，或未按合同规定支付到期金额）的严重违反。

          当然，法官们认为自己不受界定什么构成严重不当行为的终止条款的约束。在任何情况下，因严重不当行为而终止协议的一方必须在终止协议书中明确通知对方。最重要的是，严重的不当行为会导致通知的缺少，因此，如果终止方指控严重的不当行为，但给予通知，无论是哪种情况下，法官都可能会得出结论，认为该过失不够严重。

          (b)  近年来，判例法增加了其他免责的案例。在这种情况下，破裂是由当事方以外的原因造成的，如经济危机，上游或下游自身客户或供应商的损失。

          无论其期限是什么，法官们还排除了定期合同第一个期限结束的假设中的“突然终止”：合同的首次续签对合同破裂的受害者构成可预见的事件，这就排除了残暴的概念；但一旦合同至少续签了一次，法官随后就可以描述受害者对新的默认续签的合法信念。

          “突然终止”的赔偿

          法官只赔偿暴力行为本身的破坏性后果，但至少在第L442-1.II条的范围内，不赔偿违约行为本身的后果。

          基本规则非常简单：必须确定应授予的通知的期限，从中减去实际授予的通知期限。该净通知时间乘以受害人的平均每月毛利率，或在更通常的情况下，是乘以可变成本的利润，不包括因不履行合同/关系而消失的成本。被告应毫不犹豫地索要完整的会计证据，尤其是确定（较低的）利率，甚至要求就这些会计要素提供司法专业知识。通常，平均每月利润的基数包括最近24或36个月。

          通常，以平均保证金计算的补偿不包括任何其他补偿。但是，受害人可以证明其由于关系破裂的残酷性而遭受了其他损失。例如由于这种野蛮行为直接导致的被解雇或受害者最近进行的投资贬值。

          在预测“突然终止”时的一些实用技巧

          即使法律制度仍然模棱两可，判例法极其苛刻，无法发布强有力的指导方针，但在公司计划终止一段关系/合同时，以下是一些实用建议：

          • 如果定期合同可以默认续签，不续签通知必须在合同通知开始之前提前较长时间发出，以避免出现必须在不续签合同与不充分的通知之间作出选择或同意在新的期限内续签合同的情况;
          • 当商业团队过于激进地改变商业关系/合同的执行条件时，必须让他们意识到部分突然终止的风险；
          • 在某些情况下，发送一份带有“通知建议”的提前终止通知可能有帮助，以便尝试与另一方确认该通知；
          • 在某些关系中，根据产品线的性质，以不同的通知期限来通知关系的结束也是有用的；
          • 最后，最好的方法是缔结关系终止协议，确定通知的期限，并在必要时规定订单的逐步递减，这在和解协议的框架内是完整的，该协议最终将放弃任何索赔 ，包括“突然终止”。

          在进入关系期限的最后阶段时，应考虑“突然终止”制度：必须仔细规划合同（或事实上的关系）终止的方式，以便掌控给对方造成损害和被起诉要求赔偿的风险。

          QUICK SUMMARY: Contract negotiations do not take place in a legal vacuum. A party who negotiates contrary to the principle of good faith and then breaks off negotiations may become liable to the other party. However, the requirements for such liability are high and the enforcement of damage claims is cumbersome. At the end of the post I will share some practical tips for contract negotiations in Switzerland.

          Under Swiss law, the principle of freedom of contract is of fundamental importance. It follows from the freedom of contract that, in principle, everyone is free to enter into contract negotiations and to terminate them again without incurring any liability. A termination of contract negotiations does not have to be justified either.

          However, the freedom of contract is limited by the obligation to act in good faith (cf. article 2 para. 1 of the Swiss Civil Code), which is of equal fundamental importance. From the moment when parties enter into contract negotiations, they are in a special legal relationship with each other. That pre-contractual relationship involves certain reciprocal obligations. In particular, the parties must negotiate in a serious manner and in accordance with their actual intentions.

          Negotiating parties must not stir up the hope of the other party, contrary to their actual intentions, that a contract will actually be concluded. Put differently, a party’s willingness to conclude a contract must not be expressed more strongly than it actually is. If a party realizes that the other party wrongly beliefs that a contract would certainly be concluded, such illusion should be dispelled in due course.

          A negotiating party that terminates contract negotiations in violation of these principles, whether maliciously or negligently, may become liable to the other party based on the culpa in contrahendo doctrine. However, such liability exists in exceptional cases only.

          • The fact that contract negotiations took a long time is not sufficient for incurring such liability. The duration of negotiations is, in itself, not decisive.
          • It is not possible to derive liability from pre-existing contractual relationships between the negotiation parties, as for example in cases where parties negotiate a “mere” prolongation of an existing agreement. The decisive factor is not whether parties were already contractually bound before, but only whether the party that terminated the contract negotiations made the other party believe that a new agreement would certainly be concluded.
          • It is not decisive whether the party who terminates contract negotiations knows that the other party has already made costly investments in view of the prospective contract. In principle, anyone who makes investments already prior to the actual conclusion of a contract does so at its own risk. Even where a party to contract negotiations knows that the other party has already made (substantial) investments in the prospective agreement, a termination of the contract negotiations will, in itself, not be considered as an act of bad faith.

          What does a liability for breaking off negotiations include?

          If a party violates the aforementioned pre-contractual obligations, the other party may be entitled to compensation for the so-called negative interest. This means that the other party must be put in the position it would have been if the negotiations had not taken place. Damages may include, e.g., expenses in connection with the negotiation of the contract (travel costs, legal fees etc.), but also a loss of income in cases where a party was not able to do business with third parties because of the contract negotiations. However, the other party has no right to be treated as if the contract had been concluded (so-called positive interest).

          Having said that, it must be kept in mind that the requirements set by Swiss court for the substantiation of damages are rather high, so that the enforcement of a liability for breaking off negotiations will often be a cumbersome process. Therefore pursuing damage claims with relatively low amounts in dispute might often require a disproportionate effort.

          Practical tips – Do’s and don’ts when negotiating contracts

          • Do not overstate your willingness to conclude a contract. Be frank with your counterparty. Make it clear from the beginning of the negotiations what clauses are important to you.
          • Do not tell the other party that you are willing to sign a contract, if you still have doubts or you are even unwilling to do so. Confirm that you will sign only if you are convinced to do so.
          • Do not allow someone else (e.g., a representative, employee, branch office etc.) to negotiate on your behalf if you are not willing to enter into an agreement anyway. Keep an eye on how the negotiations are going on and intervene if necessary.
          • Do not make costly investments before a legally binding agreement is concluded. If, for time or other reasons, such investments are necessary already before the conclusion of an agreement, insist on the conclusion of an interim contract governing such investments for the event that the envisaged agreement is not concluded finally.

          In 2020, an important revision of the Swiss statute of limitations enters into force. The new law provides for longer limitation periods in cases of personal injury and extends the relative limitation periods in tort and unjust enrichment law from one to three years.

          Background of the revision

          In June 2018, the Swiss parliament adopted an amendment to the Swiss Code of Obligations (“CO”) pertaining to a revision of the statute of limitations. In November 2018, the Swiss government decided that the revised statute of limitations shall enter into force on 1 January 2020.

          The revision was significantly influenced by asbestos cases. Under the current law, damage claims of asbestos victims were time-barred in some cases even before asbestos-related diseases could be diagnosed. In March 2014, the European Court of Human Rights held in Howald Moor and others v. Switzerland that the Swiss statute of limitations amounts in such cases to a violation of article 6 paragraph 1 of the European Convention on Human Rights (right of access to a court).

          Having said that, the revision does not only concern cases of personal injury, but also includes numerous other important changes as described in the following.

          Key changes regarding limitation periods

          A. Tort law

          In tort law, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable (revised Art. 60 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

          With the exception of cases of personal injury, the absolute limitation period remains ten years as from the date when the conduct that caused the damages occurred or ended (revised Art. 60 para. 1 CO).

          In cases of personal injury, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable. Currently the relative limitation period amounts to one year only.

          The new absolute limitation period in cases of personal injury amounts to twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 60 para. 1bis CO). Under the current law, there was no special absolute limitation period for cases of personal injury, so that the ordinary 10-year period applied (Art. 60 para. 1 CO).

          If conduct, which gives rise to liability under tort law, is also punishable under criminal law, the (longer) limitation period under criminal law remains applicable (cf. Art. 97 of the Swiss Criminal Code). However, where a first-instance criminal judgment is rendered before the conduct is time-barred under criminal law, the limitation periods ends not earlier than three years as from that criminal judgment (revised Art. 60 para. 2 CO). The current law does not provide for such an additional three-year limitation period.

          B. Unjust enrichment law

          In unjust enrichment law, the new relative limitation period amounts to three years as from the date on which the injured party knows about the claim (revised Art. 67 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

          The absolute limitation period is not affected by the revision and remains ten years after the date on which the claim arises (revised Art. 67 para. 1 CO).

          C. Contract law

          With regard to contractual claims, the ordinary limitation period remains ten years from the due date (Art. 127 CO). Furthermore, the shorter limitation period of five years from the due date applicable to (amongst others) claims for rent, interest on capital and other periodic payments, (most) claims out of employment relationships etc. remains unchanged too (Art. 128 CO).

          However, in cases of personal injury, the revised statute of limitations introduces a new relative limitation period of three years from the date on which the injured party became aware of the damage, as well as a new absolute limitation period of twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 128a CO). The current law does not provide for distinct relative and absolute limitation periods for contractual claims in cases of personal injury. Instead, the ordinary ten-year limitation period (Art. 127 CO) usually applied to such cases.

          D. Summary

          In summary, the most important elements of the revised statute of limitations are the longer (trebled) relative limitation periods in tort and unjust enrichment law (i.e., three years instead of one year) and the new special rules for cases of personal injury, which now benefit from a 20-year absolute limitation period.

          Transitional provisions / application of the revised statute of limitations to pre-existing claims

          The longer limitation periods under the revised CO apply to any claims that are not yet time-barred when the revision enters into force (i.e., on 1 January 2020; revised Art. 49 para. 1, Final Title of the Swiss Civil Code). In other words, the limitation periods of any claims that do not become time-barred until 31 December 2019 at the latest will be prolonged. This is of particular relevance with regard to claims based on tort and unjust enrichment; the short one-year relative limitation periods under the current law will be extended by another two years.

          In contrast, the current law remains applicable in case the revised statute of limitations provides for shorter limitation periods (revised Art. 49 para. 2, Final Title of the Swiss Civil Code). This concerns, in particular, contractual claims in cases of personal injury. The new three-year relative limitation period under the revised law might not apply to such claims, as the current statute of limitations does not provide for a relative limitation period at all.

          Further changes brought by the revision

          In addition to the changes of the limitation periods set out above, the revision of the statute of limitations contains numerous further modifications. Some of them are listed in the following:

          1. Limitation periods do not commence or are suspended in the event that a claim cannot be asserted for objective reasons before any court worldwide (revised Art. 134 para. 1 no. 6 CO). The current law provides for such non-commencement or suspension only if the claim cannot be brought before a Swiss court.
          2. Parties to a dispute may agree in writing that limitation periods shall be suspended during settlement discussions, mediation proceedings or other out-of-court settlement proceedings (revised Art. 134 para. 1 no. 8 CO).
          3. Once a limitation period has commenced to run, waivers of statute of limitation defenses are admissible, but must not exceed ten years (revised Art. 141 para. 1 CO). Any such waivers must be in writing (new Art. 141 para. 1bis CO).
          4. In general terms and conditions (“GTC”), statute of limitation defenses may be waived by the party who makes use of the GTCs only. In contrast, a waiver by the party on whom the GTCs are imposed (e.g., consumers) is ineffective (new Art. 141 para. 1bis CO).
          5. The limitation period for an actio pauliana under the Swiss Debt Enforcement and Bankruptcy Act (“DEBA”) is extended to from currently two years to three years after service of a loss certificate, the opening of bankruptcy proceedings or the confirmation of a composition agreement with an assignment of assets (whichever is applicable; revised Art. 292 DEBA).

          If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.

          Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.

          In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.

          Europe

          Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.

          Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.

          Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.

          Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.

          Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.

          However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.

          Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?

          If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.

          An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.

          The race to regulating DLT in Europe

          Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.

          EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.

          Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.

          In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.

          France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.

          Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.

          Conclusions

          To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.

          To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.

          The author of this post is Alessandro Mazzi.

          Influencer Marketing project

          2018年5月28日

          • 意大利
          • 契约
          • 传媒

          This week the Interim Injunction Judge of the Netherlands Commercial Court ruled in summary proceedings, following a video hearing, in a case on a EUR 169 million transaction where the plaintiff argued that the final transaction had been concluded and the defendant should proceed with the deal.

          This in an – intended – transaction where the letter of intent stipulates that a EUR 30 million break fee is due when no final agreement is signed.

          In addition to ruling on this question of construction of an agreement under Dutch law, the judge also had to rule on the break fee if no agreement was concluded and whether it should be amended or reduced because of the current Coronavirus / Covid-19 crisis.

          English Language proceedings in a Dutch state court, the Netherlands Commercial Court (NCC)

          The case is not just interesting because of the way contract formation is construed under Dutch law and application of concepts of force majeure, unforeseen circumstances and amendment of agreements under the concepts of reasonableness and fairness as well as mitigation of contractual penalties, but also interesting because it was ruled on by a judge of the English language chamber of the Netherlands Commercial Court (NCC).

          This new (2019) Dutch state court offers a relatively fast and cost-effective alternative for international commercial litigation, and in particular arbitration, in a neutral jurisdiction with professional judges selected for both their experience in international disputes and their command of English.

          The dispute regarding the construction of an M&A agreement under Dutch law in an international setting

          The facts are straightforward. Parties (located in New York, USA and the Netherlands) dispute whether final agreement on the EUR 169 million transaction has been reached but do agree a break fee of €30 million in case of non-signature of the final agreement was agreed. However, in addition to claiming there is no final agreement, the defendant also argues that the break fee – due when there is no final agreement – should be reduced or changed due to the coronavirus crisis.

          As to contract formation it must be noted that Dutch law allows broad leeway on how to communicate what may or may not be an offer or acceptance. The standard is what a reasonable person in the same circumstances would have understood their communications to mean.  Here, the critical fact is that the defendant did not sign the so-called “Transaction Agreement”. The letter of intent’s binary mechanism (either execute and deliver the paperwork for the Transaction Agreement by the agreed date or pay a EUR 30 million fee) may not have been an absolute requirement for contract formation (under Dutch law) but has significant evidentiary weight. In M&A practice – also under Dutch law – with which these parties are thoroughly familiar with, this sets a very high bar for  concluding a contract was agreed other than by explicit written agreement. So, parties may generally comfortably rely on what they have agreed on in writing with the assistance of their advisors.

          The communications relied on by claimant in this case did not clear the very high bar to assume that despite the mechanism of the letter of intent and the lack of a signed Transaction Agreement there still was a binding agreement. In particular attributing the other party’s advisers’ statements and/or conduct to the contracting party they represent did not work for the claimant in this case as per the verdict nothing suggested that the advisers would be handling everything, including entering into the agreement.

          Court order for actual performance of a – deemed – agreement on an M&A deal?

          The Interim Injunction Judge finds that there is not a sufficient likelihood of success on the merits so as to justify an interim measure ordering the defendant to actually perform its obligations under the disputed Transaction Agreement (payment of EUR 169 million and take the claimant’s 50% stake in an equestrian show-jumping business).

          Enforcement of the break fee despite “Coronavirus”?

          Failing the conclusion of an agreement, there was still another question to answer as the letter of intent mechanism re the break fee as such was not disputed. Should the Court enforce the full EUR 30 million fee in the current COVID-19 circumstances? Or should the fee’s effects be modified, mitigated or reduced in some way, or  the fee agreement should even be dissolved?

          Unforeseen circumstances, reasonableness and fairness

          The Interim Injunction Judge rules that the coronavirus crisis may be an unforeseen circumstance, but it is not of such a nature that, according to standards of reasonableness and fairness, the plaintiff cannot expect the break fee obligation to remain unchanged. The purpose of the break fee is to encourage parties to enter into the transaction and attribute / share risks between them. As such the fee limits the exposure of the parties. Payment of the fee is a quick way out of the obligation to pay the purchase price of EUR 169 million and the risks of keeping the target company financially afloat. If financially the coronavirus crisis turns out less disastrous than expected, the fee of EUR 30 million may seem high, but that is what the parties already considered reasonable when they waived their right to invoke the unreasonableness of the fee. The claim for payment of the EUR 30 million break fee is therefore upheld by the Interim Injunction Judge.

          Applicable law and the actual practice of it by the courts

          The relevant three articles are in this case articles 6:94, 6:248 and 6:258 of the Dutch Civil Code. They relate to the mitigation of contractual penalties, unforeseen circumstances and amendment of the agreement under the tenets of reasonableness and fairness. Under Dutch law the courts must with all three exercise caution. Contracts must generally be enforced as agreed. The parties’ autonomy is deemed paramount and the courts’ attitude is deferential. All three articles use language stating, essentially, that interference by the courts in the contract’s operation is allowed only to avoid an “unacceptable” impact, as assessed under standards of reasonableness and fairness.

          There is at this moment of course no well- established case law on COVID-19. However, commentators have provided guidance that is very helpful to think through the issues. Recently a “share the pain” approach has been advocated by a renowned law Professor, Tjittes, who focuses on preserving the parties’ contractual equilibrium in the current circumstances. This is, in the Court’s analysis, the right way to look at the agreement here. There is no evidence in the record suggesting that the parties contemplated or discussed the full and exceptional impact of the COVID-19 crisis. The crisis may or may not be unprovided for.  However, the court rules in the current case there is no need to rule on this issue. Even if the crisis is unprovided for, there is no support in the record for the proposition that the crisis makes it unacceptable for the claimant to demand strict performance by the defendant. The reasons are straightforward.

          The break fee allocates risk and expresses commitment and caps exposure. The harm to the business may be substantial and structural, or it may be short-term and minimal. Either way, the best “share the pain” solution, to preserve the contractual equilibrium in the agreement, is for the defendant to pay the fee as written in the letter of intent. This allocates a defined risk to one party, and actual or potential risks to the other party. Reducing the break fee in any business downturn, the fee’s express purpose – comfort and confidence to get the deal done – would not be accomplished and be derived in precisely the circumstances in which it should be robust. As a result, the Court therefore orders to pay the full EUR 30 million fee. So the break fee stipulation works under the circumstances without mitigation because of the Corona outbreak.

          The Netherlands Commercial Court, continued

          As already indicated above, the case is interesting because the verdict has been rendered by a Dutch state court in English and the proceedings where also in English. Not because of a special privilege granted in a specific case but based on an agreement between parties with a proper choice of forum clause for this court. In addition to the benefit to of having an English forum without mandatorily relying on either arbitration or choosing an anglophone court, it also has the benefit of it being a state court with the application of the regular Dutch civil procedure law, which is well known by it’s practitioners and reduces the risk of surprises of a procedural nature.  As it is as such also a “normal” state court, there is the right to appeal and particularly effective under Dutch law access to expedited proceeding as was also the case in the example referred to above. This means a regular procedure with full application of all evidentiary rules may still follow, overturning or confirming this preliminary verdict in summary proceedings.

          Novel technology in proceedings

          Another first or at least a novel application is that all submissions were made in eNCC, a document upload procedure for the NCC. Where the introduction of electronic communication and litigation in the Dutch court system has failed spectacularly, the innovations are now all following in quick order and quite effective. As a consequence of the Coronavirus outbreak several steps have been quickly tried in practice and thereafter formally set up. At present this – finally – includes a secure email-correspondence system between attorneys and the courts.

          And, also by special order of the Court in this present case, given the current COVID-19 restrictions the matter was dealt with at a public videoconference hearing on 22 April 2020 and the case was set for judgment on 29 April 2020 and published on 30 April 2020.

          Even though it is a novel application, it is highly likely that similar arrangements will continue even after expiry of current emergency measures. In several Dutch courts videoconference hearings are applied on a voluntary basis and is expected that the arrangements will be formalized.

          Eligibility of cases for the Netherlands Commercial Court

          Of more general interest are the requirements for matters that may be submitted to NCC:

          • the Amsterdam District Court or Amsterdam Court of Appeal has jurisdiction
          • the parties have expressly agreed in writing that proceedings will be in English before the NCC (the ‘NCC agreement’)
          • the action is a civil or commercial matter within the parties’ autonomy
          • the matter concerns an international dispute.

          The NCC agreement can be recorded in a clause, either before or after the dispute arises. The Court even recommends specific wording:

          “All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”).”

          The phrase “to the exclusion of the jurisdiction of any other courts” is included in light of the Hague Convention on Choice of Court Agreements. It is not mandatory to include it of course and parties may decide not to exclude the jurisdiction of other courts or make other arrangements they consider appropriate. The only requirement being that such arrangements comply with the rules of jurisdiction and contract. Please note that choice of court agreements are exclusive unless the parties have “expressly provided” or “agreed” otherwise (as per the Hague Convention and Recast Brussels I Regulation).

          Parties in a pending case before another Dutch court or chamber may request that their case be referred to NCC District Court or NCC Court of Appeal. One of the requirements is to agree on a clause that takes the case to the NCC and makes English the language of the proceedings. The NCC recommends using this language:

          We hereby agree that all disputes in connection with the case [name parties], which is currently pending at the *** District Court (case number ***), will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or ”NCC District Court). Any action for interim measures, including protective measures, available under Dutch law will be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCC Court of Appeal”).

          To request a referral, a motion must be made before the other chamber or court where the action is pending, stating the request and contesting jurisdiction (if the case is not in Amsterdam) on the basis of a choice-of-court agreement (see before).

          Additional arrangements in the proceedings before the Netherlands Commercial Court

          Before or during the proceedings, parties can also agree special arrangements in a customized NCC clause or in another appropriate manner. Such arrangements may include matters such as the following:

          • the law applicable to the substantive dispute
          • the appointment of a court reporter for preparing records of hearings and the costs of preparing those records
          • an agreement on evidence that departs from the general rules
          • the disclosure of confidential documents
          • the submission of a written witness statement prior to the witness examination
          • the manner of taking witness testimony
          • the costs of the proceedings.

          Visiting lawyers and typical course of the procedure

          All acts of process are in principle carried out by a member of the Dutch Bar. Member of the Bar in an EU or EEA Member State or Switzerland may work in accordance with Article 16e of the Advocates Act (in conjunction with a member of the Dutch Bar). Other visiting lawyers may be allowed to speak at any hearing.

          The proceedings will typically follow the below steps:

          • Submitting the initiating document by the plaintiff (summons or request as per Dutch law)
          • Assigned to three judges and a senior law clerk.
          • The defendant submits its defence statement.
          • Case management conference or motion hearing (e.g. also in respect of preliminary issues such as competence, applicable law etc.) where parties may present their arguments.
          • Judgment on motions: the court rules on the motions. Testimony, expert appointment, either at this stage or earlier or later.
          • The court may allow the parties to submit further written statements.
          • Hearing: the court interviews the parties and allows them to present their arguments. The court may enquire whether the dispute could be resolved amicably and, where appropriate, assist the parties in a settlement process. If appropriate, the court may discuss with the parties whether it would be advisable to submit part or all of the dispute to a mediator. At the end of the hearing, the court will discuss with the parties what the next steps should be.
          • Verdict: this may be a final judgment on the claims or an interim judgment ordering one or more parties to produce evidence, allowing the parties to submit written submissions on certain aspects of the case, appointing one or more experts or taking other steps.

          Continuous updates, online resources Netherlands Commercial Court

          As a final note the English language website of the Netherlands Commercial Court provides ample information on procedure and practical issues and is updated with a high frequence. Under current circumstance even at a higher pace. In particular for practitioners it’s recommended to regularly consult the website. https://www.rechtspraak.nl/English/NCC/Pages/default.aspx

          This is a summary of the approved measures, which unfortunately for both tenants and landlords do not include any public aid or tax relief and just refer to a postponement in the payment of the rent.

          Premises to which they are applied

          Leased premises dedicated to activities different than residential: commercial, professional, industrial, cultural, teaching, amusement, healthcare, etc. They also apply to the lease of a whole industry (i.e. hotels, restaurants, bars, etc., which are the most usual type of businesses object of this deal).

          Types of tenants

          • Individual entrepreneurs or self-employed persons who were registered before Social Security before the declaration of the state of alarm on March 14th, 2020
          • Small and medium companies, as defined by article 257.1 of the Capital Companies Act: those who fulfil during two consecutive fiscal years these figures: assets under € 4 million, turnover under € 8 million and average staff under 50 people

          Types of landlords

          In order to benefit from these measures, the landlord should be a housing public entity or company or a big owner, considering as such the individuals or companies who own more than 10 urban properties (excluding parking places and storage rooms) or a built surface over 1.500 sqm.

          Measures approved

          The payment of the rent is postponed without interest meanwhile the state of alarm is in force, but in any case, for a maximum period of four months. Once the state of alarm is overcome, and in any case in a maximum term of four months, the postponed rents should be paid along a maximum period of two years, or the duration of the lease agreement, should it be less than two years.

          For landlords different to those mentioned above

          The tenant could apply before the landlord for the postponement in the payment of the rent (but the landlord is not obliged to accept it), and the parties can use the guarantee that the tenant should mandatorily have provided at the beginning of any lease agreement (usually equal to two month’s rent, but could be more if agreed by the parties), in full or in part, in order to use it to pay the rent. The tenant will have to provide again the guarantee within one year’s term, or less should the lease agreement have a shorter duration.

          Activities to which it is applied

          Activities which have been suspended according to the Royal Decree that declared the state of alarm, dated march, 14ht, 2020, or according to the orders issued by the authorities delegated by such Royal Decree. This should be proved through a certificated issued by the tax authorities.

          If the activity has not been directly suspended by the Royal Decree, the turnover during the month prior to the postponement should be less than 75% of the average monthly turnover during the same quarter last year. This should be proved through a responsible declaration by the tenant, and the landlord is authorised check the bookkeeping records.

          Term to apply and procedure

          The tenant should apply for these measures before the landlord within one month’s term from the publication of the Royal Decree-law, that is, from April 22nd, 2020, and the landlord (in case belongs to the groups mentioned in point c) is obliged to accept the tenant’s request, except if both parties have already agreed something different. The postponement would be applied to the following month.

          As the state of alarm was declared more than one month ago (March 14th), landlords and tenants have already been reaching some agreements, for example 50% rent reduction during the state of alarm, and 50% rent postponement during the following 6 months. Tenants who do not reach an agreement with the landlord could face an eviction procedure, however court procedures are suspended during the state of alarm. We have also seen some abusive non-payment of rent by tenants.

          When is becomes impossible to reach an agreement with the landlord, tenants have the legal remedy of claiming in Court for the application of the “rebus sic stantibus” principle, which was highly demanded during the 2008 financial crisis but very seldom applied by the Courts. This principle is aimed to re-balance the parties’ obligations when their situation had deeply changed because of unforeseen circumstances beyond their control. This principle is not included in the Spanish Civil Code, but the Supreme Court has accepted its application, in a very restricted way, in some occasions.

          Summary – What can we learn in the time of Covid-19 that can be used in mediation? And what can we learn from mediation to be used in this crisis?

          As you know, mediation is a way to solve conflicts in which the parties keep in their hands the possible solution. They do not need to come to a third party (judge or arbitrator) to impose the answer to them. Parties can imagine more freely what they need, and how to solve their differences.

          Some of the elements and techniques mediators use in a mediation can also be used in and learnt from the current Time of Covid-19. And the current crisis also helps us to understand why they are so important in mediation.

          Cooperation to get the solution is better than unilateral and imposed decisions

          We usually tend to think that cooperation is a sign of weakness and that we recur to it only if we cannot impose or view or win our case. However, as in the time of Covid-19 where countries, scientists and people should fight together, when facing a conflict cooperation and going beyond your positions brings you the possibility to explore solutions that otherwise remain hidden.

          « Now it is increasingly recognized that there are cooperative ways of negotiating our differences and that even if a “win-win” solution cannot be found, a wise agreement can still often be reached that is better for both sides than the alternative. […]

          Three points about shared interests are worth remembering. First, shared interests lie latent in every negotiation. They may not be immediately obvious. Second, shared interests are opportunities, not godsends. Third, stressing your shared interests can make the negotiation smoother and more amicable. » [Fisher, Richard; Ury, William. “Getting to Yes: Negotiating an agreement without giving in”].

          Listening is highly effective

          In the time of Covid-19 we tend to accept better information that confirms our beliefs and we accept better indications that are in accordance with our preferences and beliefs. Nevertheless, also in this time, listening is of essential importance to understand the causes and solutions.

          A mediator will always listen to the parties and will help them to do the same. Listening the other’s side arguments, its explanation of the facts, interests and needs, the reasons for its decisions… is also of utmost importance to find a joint solution.

          «Whether you are a neutral third party (professional facilitator, friend, or manager) or one of the participants, as you listen to all the stories, you begin to sense the best solution. » [Levine, Stewart. “Getting to Resolution: Turning Conflict Into Collaboration.”]

          A solution for me can also be a solution for you

          In the time of Covid-19 it seems clear to all of us that a common solution is the only possible one. A vaccine will save the entire world. In mediation, the main benefit is to understand that, unlike a court judgement or arbitral award, a joint (not imposed) solution is possible and a benefit for me does not imply a damage or a lost for my opponent.

          «A mediator works to understand each disputant’s perspective and to look for the value in it. In this role, you refrain from judging whose side is right or wrong. Instead, you try to see the merit in each side’s perspective. » [Shapiro, Daniel. “Building Agreement”].

          We master the solution and we create the agreement in a safe environment

          The solution to the current crisis does not only depend on the authorities and on the health professionals. A great part of the solution relies on everybody’s participation, washing our hands, respecting the social distance, staying safe at home avoiding contagion and the collapse of hospitals.

          In court we leave the decision of the conflict in the hands of a third party –the judge, the arbitrator­–. In a mediation, on the contrary, the solution remains in our hands. We know what our interests are, we create our agreement. Our imagination is our ally in finding the solution together with the counterparty and the assistance and experience of the mediator who does not impose it but helps the parties to find it. Quite often, what parties could get in mediation goes far beyond what a judge would’ve been able to grant. And this in a confidential environment.

          «The Sage is self-effacing and scanty of words. When his task is accomplished and things have been completed, all the people say, “We ourselves have achieved it!” » [Lao Tzu]

          Emotions do matter

          Good and bad emotions are inevitable. Particularly in periods of uncertainty, crisis and loose of control, we all face strong emotions. This is true in situations like this Covid-19 and in all conflicts, and not only in personal ones. Egos, envies, fears, anxieties… are also part of our day-to-day life, work and business, but they are rarely considered in courts when solving your conflicts. A mediator helps you to take them into account in a safe environment and as a part of the conflict itself.

          «Solving problems seems easier than talking about emotions. The problem is that when feelings are at the heart of what’s going on, they are the business at hand and ignoring them is nearly impossible. » [Stone, Douglas. “Difficult Conversations: How to Discuss What Matters Most”].

          Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19, even though it affects and produces effects in many different legal fields, does not include any reference to contracts for leases of real estate, or houses, premises or offices.

          The purpose of this note is to analyze the effects of the situation of the State of Alarm regarding those leases of offices or premises that have been forced to close in application of the decree; those others that remain totally or partially open and in operation, although with a reduced or minimal activity, in principle are not subject to the conclusions reached below without prejudice to the fact that there are individualized cases to which, despite the fact that there is not a complete closure, reasonably and logically can be applied to them.

          It is not excluded in any way that in the event of an extension of the validity of the State of Alarm, a regulation that affects the leasing contracts could be published, but for the moment this has not happened. If this were to happen, the content of said norm would apply.

          Based on the principle of freedom of covenants enshrined in art. 1255 of the Spanish Civil Code, which allows the parties signing the contract to agree (i) what scenarios and situations should be considered as constituting cases of Force Majeure and Act of God and (ii) what the contractual consequences of such scenarios should be, the first exercise that must be done is to check if the contract includes a regulatory clause of Force Majeure and its effects; if so, such clause must be followed and its analysis is left out of this note.

          In the absence of express regulation in the contract, the provisions of the Civil Code and specifically article 1105 would apply.

          COVID-19 as Force Majeure

          COVID-19 is an event that in principle meets the requirements of the Civil Code to be classified as an event of Force Majeure (art. 1105 Civil Code) since:

          • It is a foreign act and not attributable to the contractor who is the debtor of the benefit or obligation.
          • It is unpredictable, or if it were said to be “predictable”, it is certainly inevitable.
          • The event in question, the pandemic, must be a cause and result in the breach of the obligation, that is, there must be a causal link.

          Therefore, fulfilling the three requirements, the first conclusion that we reach is that very foreseeably, the Spanish Courts will classify as “Force Majeure” the situation caused by COVID 19 when a judicial dispute is raised in which such matter is discussed between litigants. We will now analyze the consequences of this status.

          Consequences of considering COVID-19 as an event of Force Majeure

          Most of the doctrine and jurisprudence understand that the effects of classifying a scenario as a case of Force Majeure in principle are:

          • Total and definitive impossibility of complying; releasing the debtor from the fulfillment of the obligation.
          • Partial inability to comply; the debtor is released only in the part that it is impossible to fulfill, but still bound by the part that can be carried out.
          • Temporary inability to comply; the debtor is released from the responsibility for default as long as the exceptional situation persists.

          Now, let us analyze how it would affect to considerate the epidemic as Force Majeure in relation to lease agreements for uses other than housing.

          Regarding the payment of rent

          The question to answer is if the classification of the current pandemic situation as a case of Force Majeure frees the tenant (whose premises have been forced to close by order of the government authority) from the obligation to pay the rent while said closing obligation persists, including in the concept of “release” different alternatives: total or partial cancellation and / or total or partial postponement.

          We are meeting these days with a frequent reaction among some tenants, who, unilaterally have informed their landlords that considering COVID 19 an event of force majeure and having been forced to close the premises / office, they suspend the payment of the rent while said situation remains. They do not terminate the contract, they do not hand over the possession, they remain in it (the premises remain closed and not operational) but they suspend the payment (it is not clear whether suspending in this case means liberating himself from the payment of the rent or postponing its payment for when the Force Majeure scenario ends).

          Arguments against liberation

          As much as this attitude can be considered “understandable” from the perspective of the lessee, not from the point of view of the lessor, said consideration runs into an obstacle: the interpretation of the Force Majeure made by the Supreme Court regarding pecuniary payment obligations, according to the Civil Sentence of May 19, 2015:

          “Not being able to consider, in the case of pecuniary debts, the subjective impossibility – insolvency – nor the objective or formal imposition, the doctrine concludes that it is not possible to imagine that if the impossibility is due to a fortuitous event it could have as effect the extinction of the obligation.

          The exoneration of the debtor by fortuitous event is not absolute, it has exceptions, as provided for in article 1105 CC, and one of them, by application of the “genus nunquam perit” principle, would be in cases of obligations to deliver generic things.

          In such circumstances, the pecuniary debtor is obliged to fulfill the main obligation, without the economic adversities freeing him from it, since what is owed is not something individualized that has perished, but something generic such as money”.

          In conclusion: it does not seem that this jurisprudential criterion allows to defend that the fulfillment of the pecuniary obligations is released, extinguished or that its breach is justified in cases of Force Majeure, therefore the pecuniary debtor, in this case the lessee, in application of this criterion and due to the generic condition of the money, would be obliged to fulfill his main obligation not being freed from it by the unforeseen economic adversities on the basis of Force Majeure.

          Arguments in favor of liberation: art. 1575 of the Civil Code

          Having said the foregoing, reference should be made to an article of the Civil Code that, with certainty, will be profusely cited in the upcoming judicial conflicts.

          The art. 1575, dealing with the leasing of rustic estates, recognizes the lessee’s right to the reduction of rent in the event of loss of more than half of the fruits (unless otherwise agreed) in “fortuitous, extraordinary and unforeseen cases … such as fire, war, plague, unusual flood, locust, earthquake or another equally unusual that the contractors have not been able to rationally foresee ”.

          Is this article, foreseen for rustic leases, applicable to urban leases?

          The art. 4.1 CC allows the analogical application of the rules when (i) they do not contemplate a specific assumption and (ii) they regulate a similar situation in which “identity of reason” may be appreciated.

          The Sentence of the Supreme Court from January 15, 2019, that solved a conflict of a lease of a building used as hotel, in which the tenant had sought the reduction of the rent under the clause “rebus sic stantibus” by the crisis of 2008 and had alleged in his favor the application of art. 1575, established:

          “The argumentation of the appealed judgment rejecting the claim to lower the agreed price is also not contrary to the legal criterion that follows from art. 1575 CC, which is the rule that allows the reduction of income in the leasing of productive assets that do not derive from risks of the business itself, it also requires that the loss of benefits originates from extraordinary and unforeseen fortuitous cases, something that by its own rarity could not have been foreseen by the parties, and that the loss of fruits is more than half of the fruits. In this particular case, none of these circumstances concur. The decrease in rents comes from market developments, the parties anticipated the possibility that in some years the profitability of the hotel would not be positive for the lessee and the losses alleged by NH in the operation of the Almería hotel are less than fifty per hundred, without taking into account that the overall result of his activity as manager of a hotel chain is, as the Audience considers proven in view of the consolidated management report, positive”.

          The Supreme Court does not admit the application of art. 1575, but not because it is considered not applicable to non-rustic leases, but because the Court concludes that the requirements are not fulfilled since the 2008 crisis was neither unpredictable and because the lessee’s losses do not exceed 50%.

          But, that interpretation of the Supreme Court together with the wording of art. 4.1 CC would support the claim of the lessee who has no incomes during the State of Alarm to demand a reduction in rental fee that fits the principle of proportionality.

          Regarding early termination at the request of the lessee

          However, we may find situations in which the lessee considering the current situation, decides to terminate the lease in advance, delivering the premises to the lessor.

          They are cases in which the early termination of the contract is intended, without respecting (i) or the mandatory term (ii) or the previous notice, in both cases under the hypothesis that they are thus regulated in the contract.

          In these scenarios, we understand that it may be defendable that, due to the situation of force majeure caused by COVID 19 and in application of art. 1105 of the CC, the lessee is exempt from the obligation:

          1. To respect the mandatory term of the lease
          2. To give prior notice to the lessor in case of early termination of the contract

          In both cases, the contract would be terminated with the delivery of possession of the premises, without prejudice to having to respect the other obligations set forth in the contract for termination and delivery, provided that they are not equally affected by the situation of Force Majeure.

          Our opinion is that, also in application of Article 1,105 of the CC, the thesis that the lessee would be released from any obligation to compensate damages to the lessor for said advance resolution or breach of the obligatory duration of the contract could be defendable before the Courts.

          Conclusion

          In conclusion, when the Courts decide on the effects of the current pandemic (that they will surely classify as Force Majeure), and how this will affect the obligations of leaseholders who have been forced to close their business, our opinion is the following:

          • Regarding the obligation to pay the rent, despite the contrary criterion of the sentence from May 19, 2015, we find defendable the analogue application of art. 1575 of the CC, based as well on the Supreme Court Sentence from January 15, 2019, in order to demand a proportional and equitable reduction of the rent.
          • Regarding the power of the leaseholder to terminate the contract in advance, in case the leaseholder hands the possession of the property to the lessor, we find defendable to exonerate the leaseholder from complying with the advance notice or mandatory term in case provided in the contract, without the obligation to indemnify the lessor for this reason.

          Application of the Rebus Sic Stantibus clause (“RSS” clause)

          We will analyze below if the RSS clause can be applicable to the case that we are studying and with which consequences.

          Requirements of the RSS clause (Latin aphorism that means “things thus standing”)

          The principle RSS operates as an intrinsic clause (that is, implicit, without the need to expressly agree by the parties) in the contractual relationship, which means that the stipulations established in a contract are so in view of the concurrent circumstances at the time, that is, “things thus standing”, so that any substantial and unforeseen alteration of the same could lead to the modification of the contractual content.

          The RSS clause is not regulated in any article in our laws; It is a doctrinal construction that the jurisprudence has traditionally admitted (examples among many other Supreme Court Sentences from June 30, 2014, February 24, 2015, January 15, 2019, July 18, 2019), with great caution, only in certain cases, and requiring the following requirements:

          • That there has been an extraordinary alteration in the circumstances of the contract, at the time that it must be fulfilled, in relation to those present at the time the parties entered the contract.
          • To analyze whether an incident can determine the extraordinary alteration of the circumstances that gave meaning to the contract, we must a) contrast the scope of said alteration regarding the meaning or purpose of the contract and the commutativity or performance balance thereof; and b) the “normal risk” inherent or derived from the contract must be excluded.
          • That there has been an exorbitant disproportion, out of all calculation, between the obligations of the contracting parties, causing an imbalance between them.
          • That the above occurs because of radically unpredictable circumstances.
          • That there is no other remedy to overcome the situation.

          Historically, our courts have been very reluctant to apply RSS, although since the economic crisis of 2008-2012 there has been a certain change in criteria and greater jurisprudential receptivity.

          Consequences of the application of RSS

          The doctrine establishes that the application of the RSS does not have in principle terminating effects on the contract, but only modifying effects, aimed at compensating the imbalance of obligations between the parties;  the doctrine establishes that this only applies to long-term contracts or successive contracts with deferred execution.

          In application of the good faith principle, the reaction to an event of fortuitous event, force majeure or, in general, an event that generates a disproportion between the parties, such as that regulated by the RSS clause, should be the amendment of the contract to rebalance the obligations between the parties, and only in the event of material impossibility to comply with the obligations, the resolution of the obligation, in both cases without compensation for non-compliance.

          For this reason, in relation to leasing contracts and in case of closure of the premises by mandatory mandate, we understand that the RSS clause may be:

          • alleged by the leaseholder to request or urge the lessor to downsize or postpone payment.
          • estimated by the judges, when these assumptions are debated before the Courts, when accepting such contractual amendment as equitable and legitimate in order to compensate the imbalance generated by the effects of COVID 19.

          To summarize, the RSS clause can be a tool for the leaseholder that has had to close its premises during the State of Alarm, when negotiating with the lessor an amendment of the contract, trying to postpone the rent while the State of Alarm or negotiating a discount.

          We should bear in mind:

          • That the RSS clause is unavoidably applicable on a casuistic basis, there are no generalizations and it will be necessary to take into account the effect caused by COVID 19 in each specific contractual relationship (Supreme Court Sentence from June 30, 2014 and February 24, 2015) and the real imbalance of benefits produced, and
          • That, as we have said, the Courts are generally reluctant to apply this clause, that they only apply in the absence of any other legal tool and in situations in which the maintenance of the contractual status quo reveals a manifest “injustice ”and a evident and resounding imbalance between the performance of the parties.

          Does this mean that the leaseholder may impose on the lessor a modification of the economic conditions of the contract under the RSS clause (postponement or total or partial cancellation of the payment)?

          We cannot assure this, what we think is that the application of this RSS clause should:

          • Justify a reasonable request from the leaseholder to temporarily change the conditions of the contract (postponement or cancellation, total or partially) that the lessor must reasonably meet.
          • In case of unreasonable refusal of the lessor, we recommend to document as much as possible leaseholder´s request and the possible negotiations or refusal, in order to substantiate a suspension of the payment of the rent, total or partial, during the State of Alarm aimed, not to extinguish his obligation, but to postpone it.

          We will have to wait for the reaction of the Courts when they judge these conflicts, but if we dare to anticipate that it is quite possible that the judicial tendency will be to grant protection to the leaseholder with support in the RSS clause and the principle of business preservation, when it comes to validating certain modifying effects regarding the payment obligations of the leaseholder (total or partial remission of the rent payment during the pandemic crisis, postponement, or partial postponement).

          In any case, it will be essential to prove, that the behavior of the leaseholder seeking protection in the RSS clause to amend the contract, has been strictly adjusted to the principle of good faith (Supreme Court Sentence from April 30, 2015).

          It will also be important to analyze case by case why the displacement of the risk derived from the “exceptional and unforeseen event” from one contractor to the other is justified (Supreme Court Sentence from January 15, 2015) and could well be defended (Supreme Court Sentence from July 18, 2019) that both contracting parties must divide and assume the consequences between the two of them. The judicial decisions will vary in each specific case.

          Conclusions and Recommendations

          In conclusion, it seems that the leaseholder would have two instruments in order to try to successfully suspend or postpone the payment of the rents, the RSS clause and the principle of Force Majeure.

          In our view, the replacement of the contractual balance altered by the exceptional event, may consist of either an extension of the lease payment terms or the application of a total, or partial cancellation of the rental payment obligation while it lasts the State of Alarm, but we understand that it will be defendable that the delay in the payment may not give rise neither to the termination of the contract under art. 1124 Cc nor to the requirement of damages art. 1105 Cc, therefore, will not empower the lessor to urge eviction.

          Therefore, the steps to be followed in each case would be:

          • Carry out an examination of the contract to check whether force majeure and acts of God are regulated and if the current situation is in accordance with the contract provisions.
          • Should nothing be set forth at the contract, and in case the leaseholder has had to close the premises or office, notify the other party of this circumstance and try to negotiate a novation of the lease requesting:
            • Waiver of the payment obligation during the Alarm State.
            • The application of a discount on the payment obligations with both parties sharing the effects of the pandemic, in a proportion to be agreed.
            • Postponement of payment obligations until the premises or office can be reopened with a payment plan for the deferred debt.

          If it is not possible to reach an agreement, it is advisable to try to maintain evidence that the parties have acted in good faith trying to reach a negotiated solution and at the extreme (from the leaseholder´s point of view) announce, without waiting to receive a communication or claim from the Lessor, the suspension of the rental fee payment until reopening of the premises/offices, justifying the same in the Alarm State.

          《法国商业法》规定，贸易商在未给予充分书面通知的情况下终止书面合同或非正式商业关系(第442-1.1条)将被制裁。在过去的二十年中，这已成为商业关系或合同终止（全部或部分终止）时所有补偿行为（最高可达24个月的毛利率以及其他损害赔偿）的经常性法律依据。

          因此，与法国公司签约的外国贸易商应尽量避开该规则的管辖范围 (第一部分)，如果不能，则应理解并控制其实施 (第二部分)。

          简而言之

          外国公司如何避免或控制与法国法律规定的“突然终止商业关系”有关的风险？

          与法国公司做生意的外国公司应该这样做：

          • 与法国供应商或客户尽快达成书面（框架）协议，即使是非常简单的关系也是如此；
          • 规定一项有利于外国法院或仲裁以及外国适用法律的条款，而如果不能选择该条款，则只能服从法国法院和法律。

          外国公司如何才能掌控法国法律规定的“突然终止商业关系”的风险?

          与法国公司做生意的外国公司应该这样做：

          • 要知道，本条适用于几乎所有类型的商业关系或合同，无论是书面的还是非书面的，无论是定期的还是非定期的;
          • 检查其关系/合同是否期限足够且正常和重要，以及对方是否有合理理由相信该关系/合同会继续维持；
          • 给出终止或不续约（甚至是重大修改）的书面通知，其期限主要考虑到关系的持续时间，与合同通知的时限无关；
          • 谨慎地劝告当事方在遭遇不可抗力和严重过失的情况下，搁置“突然终止”；
          • 如果没有充分的通知，则预计赔偿金额为为每月平均毛利率与未获批准的事先通知的期限之积。

          如何避免适用法国的“突然终止”规则?

          在国际事务中，外国公司必须预见其关系是否将受到法国法律的管辖，并且在发生争议的情况下，是否将其关系提交到法国法院。

          “突然终止合同”的法律适用范围是什么?

          对于一个外国公司来说，要正确地掌握适用于“突然终止”的法国法律冲突法规则框架是相当困难的。巴黎上诉法院在2018年9月19日的裁决（RG 16/05579，DES / 娇韵诗）中隐含提及Granarolo欧盟裁决（07 14 16，N°C196 / 15），该裁决将合同资格扩展至大多数业务关系，以改善可预见性，来应对外国公司试图排除法国法律及其“突然终止”规则的行为。

          突然终止书面合同或“默认合同关系”

          根据关于合同适用法律的罗马一号法规 (EC No 593 / 2008，2008年6月17日)：

          • 如果当事各方选择了外国法律：选择外国适用法律的条款将是有效的，并将受到法国法官的尊重 (服从OMR，请参阅下文)，前提是当事各方选择的法律是明示或确定的。
          • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为它可能也是分销商/加盟商所在国的法律等，或是提供合同服务功能的当事方所在国家/地区的法律。

          突然终止“非默认合同关系”

          如果是非正式关系 (即偶尔下达订单)，法国法官将保留侵权行为资格，并将参考适用于非合同义务法律的《罗马二号条例》(第864/2007号，2007年7月11日)。

          • 如果当事各方选择了外国法律：法国法官应执行草拟的外国法选择条款，条件是该条款明确包含侵权案件。
          • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为这可能是损害发生的国家/地区的法律（无论是发生事件的地点还是造成间接后果的地点），是法国受害者遭受终止结果的总部所在地。

          “突然终止合同”是法国的一项压倒一切的强制性规定吗?

          法国法院的立场相当模糊且令人不满。 简而言之：巴黎商事法庭认为“突然终止”不是OMR，巴黎上诉法院（负责“突然终止”案件的唯一法国上诉法院）却支持OMR资格，而最高法院……对此事保持沉默。尽管罗马一号条例（或罗马二号）第9.1条缺乏严格的推理和理由，但很明显，巴黎上诉法院有司法意愿将“突然终止”归为OMR。 因此，如果向法国法院提出“突然终止”的要求，则该法国法院极有可能排除适用的外国法律，而将其替换为产生于第L 442-1. II条“突然终止”。

          因此，外国公司确保“突然终止”不会妨碍合同的终止或停止续签的唯一可能性，不仅是选择一项适用的外国法律，而且是确保将争端提交外国法官或仲裁庭。

          如何避免法国法院对“突然终止”索赔的管辖权?

          “突然终止”索赔和欧盟内部共同承包商

          欧洲法院的裁决(Granarolo, 2016年7月14日，NC196/15)区分了以下索赔:

          • 书面框架合同或默认合同关系 (仅当欧洲法院所列出的证据由国家法官确定时才存在，即相互承认的关系和承诺的限期，如排他性、特价或交货与付款条件、竞业禁止等)：根据布鲁塞尔一号重铸条例下的管辖权冲突规则，此类索赔具有合同性质；
          • 非正式关系——一种非默认的合同关系 (即不时下达的命令)：在布鲁塞尔一号重铸条例下这样的请求具有侵权性质。

          （a）谁是“突然终止”书面合约或“默契合约关系”的法官?

          • 为了外国法院的利益，管辖权条款将由法国法院执行，即使它是一个不对称的条款 (最高法院，2015年10月7日，Ebizcuss.com / 苹果销售国际)。
          • 在缺乏法院条款选择的情况下，如果以“突然终止”为基础提起诉讼的法国索赔人是服务提供者，例如分销商，代理人等，则法国法院可能具有管辖权 (请参阅欧洲法院 Corman Collins案， 19 12 13，C-9 / 12和布鲁塞尔一号重铸条例第7.1.b.2条)。

          （b）谁是“非默认合同关系”“突然终止”的法官？

          • 我们认为，法国法院可能会继续执行侵权案件中的管辖权条款，特别是明确包含侵权诉讼的条款 (最高法院，1°Ch.Civ.，2017年1月18日，n°15-26105，里维埃拉汽车/阿斯顿马丁拉贡达有限公司)。
          • 在缺乏法院条款选择权的情况下，法国法院将对“突然终止”索赔具有管辖权，所以由位于发生损害事件地点的法官（布鲁塞尔一号第7.3条）负责，而该地点是“突然终止”生效的地方……即如果法国公司是受害者，该地点就在法国。

          “突然终止”索赔和非欧盟共同承包商

          如果一名法国受害者基于非欧盟公司的“突然终止”向法国法院提出索赔，Granarolo解决方案将不在事实上适用。在非欧盟关系中，法国法官只能继续保留侵权资格。在这种情况下，法国法院可以根据损害事件发生的地点保留其管辖权。然而，即使是基于侵权的索赔，在法国也可以承认管辖权条款。

          “突然终止”索赔和仲裁

          制定一项临时条款或机构仲裁条款可能是规避法国法院管辖权的最安全解决方案。理想情况下，该条款将在法国境外确定仲裁庭的席位。根据仲裁员的胜任力原则，法国法院宣布其自身无能力仲裁，除非仲裁条款明显无效或明显不适用，无论合同或侵权理由如何 (特别参见巴黎上诉法院，2019年9月5日，n / 17/03703)。

          结论：外国公司不应公开管辖权和管辖法律问题。他们必须协商出一个安全港湾，否则，被终止的法国受害人将可能有权向法国法官提出“突然终止”的要求（请参阅下面第2部分的内容）

          如何掌握“突然终止”法律的规则?

          在法国法律适用的情况下，外国公司将面临法国商业法典L442 -1.II条对“突然终止”的制裁。 作为一项初步说明，首先必须知道，“突然终止”责任的执行是通知时间太短的结果。 因此，该方案没有制定自动补偿规则。换句话说，一旦终止的发起人发出了合理的通知，基于该通知的责任就可以被免除。

          “突然终止”的先决条件：已建立的商业关系

          所有合同均受该法律制度的约束，法规中规定了特定终止通知的合同除外，例如商业代理合同和公路分包合同的货物运输。

          首先，必须存在一种可以通过书面合同或事实上当事双方的行为所证明的关系。这种关系可以建立在一系列默认续签的合同或由多个订单实现的正常业务流程基础之上。

          第二，这种关系必须具有既定的特征。没有法律定义，但是判例法年复一年地对这一概念进行了界定，判例法已经建立了一个客观标准和一个更主观的标准。

          (a) 客观标准意味着双方之间有足够长期、经常和重要的关系。关系的持续时间是最重要的标准。这种关系必须是有规律的，也就是说，它不能被打断(太频繁或太长时间)。这种关系最终必须是有意义的，并且在数量或价值上代表双方之间的业务流。

          (b) 主观测试主要侧重于受害人在基于事实层面上认为继续的合同/关系（例如投资要求，几年内的预算等）将走向破裂的合理信念。相反，正是基于对共同的未来缺乏合理信念的结果，即当终止方多次提出招标要求时，终止方可以证明其缺乏稳定的品格 (除非这是一个诡计)。

          提前预计“突然终止”索赔

          (a) 终止可以是全部或部分的

          完全破裂是通过关系的完全终止来实现的，例如终止合同、停止买方发送订单或停止供应商记录订单。但是要处理的最复杂的情况是所谓的部分破裂，它是通过对部分影响关系但不会将其减少为零的部分进行修改而得出的 (例如：价格上涨或下跌，付款或交付条件的改变)。

          (b) 终止必须以合理的事先书面通知为准

          通知必须以书面形式通知。没有书面通知本身就是一种违约行为。通知必须清楚地反映一方当事人全部或部分断绝关系的意愿，并且必须清楚地表明这一意愿。双方必须区分正式违约通知函和随后发出的违约通知（如适用）。在通知期间内，双方必须完全遵守所有合同条件。

          在2019年改革之前，法国法律没有明确规定应遵守的事先通知的期限。如果判例法规定了若干标准，则应当指出，最重要的标准是关系的持续时间。法官还考虑到受害人所占的营业额份额、领土排他性的存在与否、产品的性质和活动的范围、受害者进行投资的重要性（特别是对于所涉关系的投资），最后是经济依赖的状态。法官们发出通知的时间长短不一。对通知的评估是逐案进行的。即使是几乎对于一段关系中的一年，也可能需要一个月的通知时间（根据关系中的其他标准进行上下调整），很难给出一个黄金法则。2019年4月24日的法令根据第l442 -1. i条把合理到期的通知期限限制为18个月。但大部分诉讼仍存在不确定性，因为只有特别长寿或特别敏感的关系，才可能导致高于18个月的通知分配时间。

          法官不受合同规定的合同通知书的约束。但是，如果违约方还违反了合同规定的终止条款和条件，则受害人可以在突然终止的侵权基础上，或违反合同义务的基础上，追究违约方的责任。

          排除“突然终止合同”的情况

          法律制度规定了两种情况，而判例法似乎还规定了其他情况。

          (a) 两个法律例外分别是不可抗力（很少被法院神圣化）和遭受终止的受害者的过失，判例法补充说，这必须是对合同承诺或法律规定（如不尊重排他性、竞业禁止、保密或变更控制责任，或未按合同规定支付到期金额）的严重违反。

          当然，法官们认为自己不受界定什么构成严重不当行为的终止条款的约束。在任何情况下，因严重不当行为而终止协议的一方必须在终止协议书中明确通知对方。最重要的是，严重的不当行为会导致通知的缺少，因此，如果终止方指控严重的不当行为，但给予通知，无论是哪种情况下，法官都可能会得出结论，认为该过失不够严重。

          (b)  近年来，判例法增加了其他免责的案例。在这种情况下，破裂是由当事方以外的原因造成的，如经济危机，上游或下游自身客户或供应商的损失。

          无论其期限是什么，法官们还排除了定期合同第一个期限结束的假设中的“突然终止”：合同的首次续签对合同破裂的受害者构成可预见的事件，这就排除了残暴的概念；但一旦合同至少续签了一次，法官随后就可以描述受害者对新的默认续签的合法信念。

          “突然终止”的赔偿

          法官只赔偿暴力行为本身的破坏性后果，但至少在第L442-1.II条的范围内，不赔偿违约行为本身的后果。

          基本规则非常简单：必须确定应授予的通知的期限，从中减去实际授予的通知期限。该净通知时间乘以受害人的平均每月毛利率，或在更通常的情况下，是乘以可变成本的利润，不包括因不履行合同/关系而消失的成本。被告应毫不犹豫地索要完整的会计证据，尤其是确定（较低的）利率，甚至要求就这些会计要素提供司法专业知识。通常，平均每月利润的基数包括最近24或36个月。

          通常，以平均保证金计算的补偿不包括任何其他补偿。但是，受害人可以证明其由于关系破裂的残酷性而遭受了其他损失。例如由于这种野蛮行为直接导致的被解雇或受害者最近进行的投资贬值。

          在预测“突然终止”时的一些实用技巧

          即使法律制度仍然模棱两可，判例法极其苛刻，无法发布强有力的指导方针，但在公司计划终止一段关系/合同时，以下是一些实用建议：

          • 如果定期合同可以默认续签，不续签通知必须在合同通知开始之前提前较长时间发出，以避免出现必须在不续签合同与不充分的通知之间作出选择或同意在新的期限内续签合同的情况;
          • 当商业团队过于激进地改变商业关系/合同的执行条件时，必须让他们意识到部分突然终止的风险；
          • 在某些情况下，发送一份带有“通知建议”的提前终止通知可能有帮助，以便尝试与另一方确认该通知；
          • 在某些关系中，根据产品线的性质，以不同的通知期限来通知关系的结束也是有用的；
          • 最后，最好的方法是缔结关系终止协议，确定通知的期限，并在必要时规定订单的逐步递减，这在和解协议的框架内是完整的，该协议最终将放弃任何索赔 ，包括“突然终止”。

          在进入关系期限的最后阶段时，应考虑“突然终止”制度：必须仔细规划合同（或事实上的关系）终止的方式，以便掌控给对方造成损害和被起诉要求赔偿的风险。

          QUICK SUMMARY: Contract negotiations do not take place in a legal vacuum. A party who negotiates contrary to the principle of good faith and then breaks off negotiations may become liable to the other party. However, the requirements for such liability are high and the enforcement of damage claims is cumbersome. At the end of the post I will share some practical tips for contract negotiations in Switzerland.

          Under Swiss law, the principle of freedom of contract is of fundamental importance. It follows from the freedom of contract that, in principle, everyone is free to enter into contract negotiations and to terminate them again without incurring any liability. A termination of contract negotiations does not have to be justified either.

          However, the freedom of contract is limited by the obligation to act in good faith (cf. article 2 para. 1 of the Swiss Civil Code), which is of equal fundamental importance. From the moment when parties enter into contract negotiations, they are in a special legal relationship with each other. That pre-contractual relationship involves certain reciprocal obligations. In particular, the parties must negotiate in a serious manner and in accordance with their actual intentions.

          Negotiating parties must not stir up the hope of the other party, contrary to their actual intentions, that a contract will actually be concluded. Put differently, a party’s willingness to conclude a contract must not be expressed more strongly than it actually is. If a party realizes that the other party wrongly beliefs that a contract would certainly be concluded, such illusion should be dispelled in due course.

          A negotiating party that terminates contract negotiations in violation of these principles, whether maliciously or negligently, may become liable to the other party based on the culpa in contrahendo doctrine. However, such liability exists in exceptional cases only.

          • The fact that contract negotiations took a long time is not sufficient for incurring such liability. The duration of negotiations is, in itself, not decisive.
          • It is not possible to derive liability from pre-existing contractual relationships between the negotiation parties, as for example in cases where parties negotiate a “mere” prolongation of an existing agreement. The decisive factor is not whether parties were already contractually bound before, but only whether the party that terminated the contract negotiations made the other party believe that a new agreement would certainly be concluded.
          • It is not decisive whether the party who terminates contract negotiations knows that the other party has already made costly investments in view of the prospective contract. In principle, anyone who makes investments already prior to the actual conclusion of a contract does so at its own risk. Even where a party to contract negotiations knows that the other party has already made (substantial) investments in the prospective agreement, a termination of the contract negotiations will, in itself, not be considered as an act of bad faith.

          What does a liability for breaking off negotiations include?

          If a party violates the aforementioned pre-contractual obligations, the other party may be entitled to compensation for the so-called negative interest. This means that the other party must be put in the position it would have been if the negotiations had not taken place. Damages may include, e.g., expenses in connection with the negotiation of the contract (travel costs, legal fees etc.), but also a loss of income in cases where a party was not able to do business with third parties because of the contract negotiations. However, the other party has no right to be treated as if the contract had been concluded (so-called positive interest).

          Having said that, it must be kept in mind that the requirements set by Swiss court for the substantiation of damages are rather high, so that the enforcement of a liability for breaking off negotiations will often be a cumbersome process. Therefore pursuing damage claims with relatively low amounts in dispute might often require a disproportionate effort.

          Practical tips – Do’s and don’ts when negotiating contracts

          • Do not overstate your willingness to conclude a contract. Be frank with your counterparty. Make it clear from the beginning of the negotiations what clauses are important to you.
          • Do not tell the other party that you are willing to sign a contract, if you still have doubts or you are even unwilling to do so. Confirm that you will sign only if you are convinced to do so.
          • Do not allow someone else (e.g., a representative, employee, branch office etc.) to negotiate on your behalf if you are not willing to enter into an agreement anyway. Keep an eye on how the negotiations are going on and intervene if necessary.
          • Do not make costly investments before a legally binding agreement is concluded. If, for time or other reasons, such investments are necessary already before the conclusion of an agreement, insist on the conclusion of an interim contract governing such investments for the event that the envisaged agreement is not concluded finally.

          In 2020, an important revision of the Swiss statute of limitations enters into force. The new law provides for longer limitation periods in cases of personal injury and extends the relative limitation periods in tort and unjust enrichment law from one to three years.

          Background of the revision

          In June 2018, the Swiss parliament adopted an amendment to the Swiss Code of Obligations (“CO”) pertaining to a revision of the statute of limitations. In November 2018, the Swiss government decided that the revised statute of limitations shall enter into force on 1 January 2020.

          The revision was significantly influenced by asbestos cases. Under the current law, damage claims of asbestos victims were time-barred in some cases even before asbestos-related diseases could be diagnosed. In March 2014, the European Court of Human Rights held in Howald Moor and others v. Switzerland that the Swiss statute of limitations amounts in such cases to a violation of article 6 paragraph 1 of the European Convention on Human Rights (right of access to a court).

          Having said that, the revision does not only concern cases of personal injury, but also includes numerous other important changes as described in the following.

          Key changes regarding limitation periods

          A. Tort law

          In tort law, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable (revised Art. 60 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

          With the exception of cases of personal injury, the absolute limitation period remains ten years as from the date when the conduct that caused the damages occurred or ended (revised Art. 60 para. 1 CO).

          In cases of personal injury, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable. Currently the relative limitation period amounts to one year only.

          The new absolute limitation period in cases of personal injury amounts to twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 60 para. 1bis CO). Under the current law, there was no special absolute limitation period for cases of personal injury, so that the ordinary 10-year period applied (Art. 60 para. 1 CO).

          If conduct, which gives rise to liability under tort law, is also punishable under criminal law, the (longer) limitation period under criminal law remains applicable (cf. Art. 97 of the Swiss Criminal Code). However, where a first-instance criminal judgment is rendered before the conduct is time-barred under criminal law, the limitation periods ends not earlier than three years as from that criminal judgment (revised Art. 60 para. 2 CO). The current law does not provide for such an additional three-year limitation period.

          B. Unjust enrichment law

          In unjust enrichment law, the new relative limitation period amounts to three years as from the date on which the injured party knows about the claim (revised Art. 67 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

          The absolute limitation period is not affected by the revision and remains ten years after the date on which the claim arises (revised Art. 67 para. 1 CO).

          C. Contract law

          With regard to contractual claims, the ordinary limitation period remains ten years from the due date (Art. 127 CO). Furthermore, the shorter limitation period of five years from the due date applicable to (amongst others) claims for rent, interest on capital and other periodic payments, (most) claims out of employment relationships etc. remains unchanged too (Art. 128 CO).

          However, in cases of personal injury, the revised statute of limitations introduces a new relative limitation period of three years from the date on which the injured party became aware of the damage, as well as a new absolute limitation period of twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 128a CO). The current law does not provide for distinct relative and absolute limitation periods for contractual claims in cases of personal injury. Instead, the ordinary ten-year limitation period (Art. 127 CO) usually applied to such cases.

          D. Summary

          In summary, the most important elements of the revised statute of limitations are the longer (trebled) relative limitation periods in tort and unjust enrichment law (i.e., three years instead of one year) and the new special rules for cases of personal injury, which now benefit from a 20-year absolute limitation period.

          Transitional provisions / application of the revised statute of limitations to pre-existing claims

          The longer limitation periods under the revised CO apply to any claims that are not yet time-barred when the revision enters into force (i.e., on 1 January 2020; revised Art. 49 para. 1, Final Title of the Swiss Civil Code). In other words, the limitation periods of any claims that do not become time-barred until 31 December 2019 at the latest will be prolonged. This is of particular relevance with regard to claims based on tort and unjust enrichment; the short one-year relative limitation periods under the current law will be extended by another two years.

          In contrast, the current law remains applicable in case the revised statute of limitations provides for shorter limitation periods (revised Art. 49 para. 2, Final Title of the Swiss Civil Code). This concerns, in particular, contractual claims in cases of personal injury. The new three-year relative limitation period under the revised law might not apply to such claims, as the current statute of limitations does not provide for a relative limitation period at all.

          Further changes brought by the revision

          In addition to the changes of the limitation periods set out above, the revision of the statute of limitations contains numerous further modifications. Some of them are listed in the following:

          1. Limitation periods do not commence or are suspended in the event that a claim cannot be asserted for objective reasons before any court worldwide (revised Art. 134 para. 1 no. 6 CO). The current law provides for such non-commencement or suspension only if the claim cannot be brought before a Swiss court.
          2. Parties to a dispute may agree in writing that limitation periods shall be suspended during settlement discussions, mediation proceedings or other out-of-court settlement proceedings (revised Art. 134 para. 1 no. 8 CO).
          3. Once a limitation period has commenced to run, waivers of statute of limitation defenses are admissible, but must not exceed ten years (revised Art. 141 para. 1 CO). Any such waivers must be in writing (new Art. 141 para. 1bis CO).
          4. In general terms and conditions (“GTC”), statute of limitation defenses may be waived by the party who makes use of the GTCs only. In contrast, a waiver by the party on whom the GTCs are imposed (e.g., consumers) is ineffective (new Art. 141 para. 1bis CO).
          5. The limitation period for an actio pauliana under the Swiss Debt Enforcement and Bankruptcy Act (“DEBA”) is extended to from currently two years to three years after service of a loss certificate, the opening of bankruptcy proceedings or the confirmation of a composition agreement with an assignment of assets (whichever is applicable; revised Art. 292 DEBA).

          If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.

          Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.

          In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.

          Europe

          Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.

          Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.

          Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.

          Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.

          Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.

          However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.

          Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?

          If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.

          An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.

          The race to regulating DLT in Europe

          Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.

          EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.

          Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.

          In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.

          France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.

          Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.

          Conclusions

          To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.

          To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.

          The author of this post is Alessandro Mazzi.

          互联网技术服务合同中须拟定与著作权相关的条款

          2018年1月25日

          • 波兰
          • Information Technology
          • 契约
          • 知识产权

          This week the Interim Injunction Judge of the Netherlands Commercial Court ruled in summary proceedings, following a video hearing, in a case on a EUR 169 million transaction where the plaintiff argued that the final transaction had been concluded and the defendant should proceed with the deal.

          This in an – intended – transaction where the letter of intent stipulates that a EUR 30 million break fee is due when no final agreement is signed.

          In addition to ruling on this question of construction of an agreement under Dutch law, the judge also had to rule on the break fee if no agreement was concluded and whether it should be amended or reduced because of the current Coronavirus / Covid-19 crisis.

          English Language proceedings in a Dutch state court, the Netherlands Commercial Court (NCC)

          The case is not just interesting because of the way contract formation is construed under Dutch law and application of concepts of force majeure, unforeseen circumstances and amendment of agreements under the concepts of reasonableness and fairness as well as mitigation of contractual penalties, but also interesting because it was ruled on by a judge of the English language chamber of the Netherlands Commercial Court (NCC).

          This new (2019) Dutch state court offers a relatively fast and cost-effective alternative for international commercial litigation, and in particular arbitration, in a neutral jurisdiction with professional judges selected for both their experience in international disputes and their command of English.

          The dispute regarding the construction of an M&A agreement under Dutch law in an international setting

          The facts are straightforward. Parties (located in New York, USA and the Netherlands) dispute whether final agreement on the EUR 169 million transaction has been reached but do agree a break fee of €30 million in case of non-signature of the final agreement was agreed. However, in addition to claiming there is no final agreement, the defendant also argues that the break fee – due when there is no final agreement – should be reduced or changed due to the coronavirus crisis.

          As to contract formation it must be noted that Dutch law allows broad leeway on how to communicate what may or may not be an offer or acceptance. The standard is what a reasonable person in the same circumstances would have understood their communications to mean.  Here, the critical fact is that the defendant did not sign the so-called “Transaction Agreement”. The letter of intent’s binary mechanism (either execute and deliver the paperwork for the Transaction Agreement by the agreed date or pay a EUR 30 million fee) may not have been an absolute requirement for contract formation (under Dutch law) but has significant evidentiary weight. In M&A practice – also under Dutch law – with which these parties are thoroughly familiar with, this sets a very high bar for  concluding a contract was agreed other than by explicit written agreement. So, parties may generally comfortably rely on what they have agreed on in writing with the assistance of their advisors.

          The communications relied on by claimant in this case did not clear the very high bar to assume that despite the mechanism of the letter of intent and the lack of a signed Transaction Agreement there still was a binding agreement. In particular attributing the other party’s advisers’ statements and/or conduct to the contracting party they represent did not work for the claimant in this case as per the verdict nothing suggested that the advisers would be handling everything, including entering into the agreement.

          Court order for actual performance of a – deemed – agreement on an M&A deal?

          The Interim Injunction Judge finds that there is not a sufficient likelihood of success on the merits so as to justify an interim measure ordering the defendant to actually perform its obligations under the disputed Transaction Agreement (payment of EUR 169 million and take the claimant’s 50% stake in an equestrian show-jumping business).

          Enforcement of the break fee despite “Coronavirus”?

          Failing the conclusion of an agreement, there was still another question to answer as the letter of intent mechanism re the break fee as such was not disputed. Should the Court enforce the full EUR 30 million fee in the current COVID-19 circumstances? Or should the fee’s effects be modified, mitigated or reduced in some way, or  the fee agreement should even be dissolved?

          Unforeseen circumstances, reasonableness and fairness

          The Interim Injunction Judge rules that the coronavirus crisis may be an unforeseen circumstance, but it is not of such a nature that, according to standards of reasonableness and fairness, the plaintiff cannot expect the break fee obligation to remain unchanged. The purpose of the break fee is to encourage parties to enter into the transaction and attribute / share risks between them. As such the fee limits the exposure of the parties. Payment of the fee is a quick way out of the obligation to pay the purchase price of EUR 169 million and the risks of keeping the target company financially afloat. If financially the coronavirus crisis turns out less disastrous than expected, the fee of EUR 30 million may seem high, but that is what the parties already considered reasonable when they waived their right to invoke the unreasonableness of the fee. The claim for payment of the EUR 30 million break fee is therefore upheld by the Interim Injunction Judge.

          Applicable law and the actual practice of it by the courts

          The relevant three articles are in this case articles 6:94, 6:248 and 6:258 of the Dutch Civil Code. They relate to the mitigation of contractual penalties, unforeseen circumstances and amendment of the agreement under the tenets of reasonableness and fairness. Under Dutch law the courts must with all three exercise caution. Contracts must generally be enforced as agreed. The parties’ autonomy is deemed paramount and the courts’ attitude is deferential. All three articles use language stating, essentially, that interference by the courts in the contract’s operation is allowed only to avoid an “unacceptable” impact, as assessed under standards of reasonableness and fairness.

          There is at this moment of course no well- established case law on COVID-19. However, commentators have provided guidance that is very helpful to think through the issues. Recently a “share the pain” approach has been advocated by a renowned law Professor, Tjittes, who focuses on preserving the parties’ contractual equilibrium in the current circumstances. This is, in the Court’s analysis, the right way to look at the agreement here. There is no evidence in the record suggesting that the parties contemplated or discussed the full and exceptional impact of the COVID-19 crisis. The crisis may or may not be unprovided for.  However, the court rules in the current case there is no need to rule on this issue. Even if the crisis is unprovided for, there is no support in the record for the proposition that the crisis makes it unacceptable for the claimant to demand strict performance by the defendant. The reasons are straightforward.

          The break fee allocates risk and expresses commitment and caps exposure. The harm to the business may be substantial and structural, or it may be short-term and minimal. Either way, the best “share the pain” solution, to preserve the contractual equilibrium in the agreement, is for the defendant to pay the fee as written in the letter of intent. This allocates a defined risk to one party, and actual or potential risks to the other party. Reducing the break fee in any business downturn, the fee’s express purpose – comfort and confidence to get the deal done – would not be accomplished and be derived in precisely the circumstances in which it should be robust. As a result, the Court therefore orders to pay the full EUR 30 million fee. So the break fee stipulation works under the circumstances without mitigation because of the Corona outbreak.

          The Netherlands Commercial Court, continued

          As already indicated above, the case is interesting because the verdict has been rendered by a Dutch state court in English and the proceedings where also in English. Not because of a special privilege granted in a specific case but based on an agreement between parties with a proper choice of forum clause for this court. In addition to the benefit to of having an English forum without mandatorily relying on either arbitration or choosing an anglophone court, it also has the benefit of it being a state court with the application of the regular Dutch civil procedure law, which is well known by it’s practitioners and reduces the risk of surprises of a procedural nature.  As it is as such also a “normal” state court, there is the right to appeal and particularly effective under Dutch law access to expedited proceeding as was also the case in the example referred to above. This means a regular procedure with full application of all evidentiary rules may still follow, overturning or confirming this preliminary verdict in summary proceedings.

          Novel technology in proceedings

          Another first or at least a novel application is that all submissions were made in eNCC, a document upload procedure for the NCC. Where the introduction of electronic communication and litigation in the Dutch court system has failed spectacularly, the innovations are now all following in quick order and quite effective. As a consequence of the Coronavirus outbreak several steps have been quickly tried in practice and thereafter formally set up. At present this – finally – includes a secure email-correspondence system between attorneys and the courts.

          And, also by special order of the Court in this present case, given the current COVID-19 restrictions the matter was dealt with at a public videoconference hearing on 22 April 2020 and the case was set for judgment on 29 April 2020 and published on 30 April 2020.

          Even though it is a novel application, it is highly likely that similar arrangements will continue even after expiry of current emergency measures. In several Dutch courts videoconference hearings are applied on a voluntary basis and is expected that the arrangements will be formalized.

          Eligibility of cases for the Netherlands Commercial Court

          Of more general interest are the requirements for matters that may be submitted to NCC:

          • the Amsterdam District Court or Amsterdam Court of Appeal has jurisdiction
          • the parties have expressly agreed in writing that proceedings will be in English before the NCC (the ‘NCC agreement’)
          • the action is a civil or commercial matter within the parties’ autonomy
          • the matter concerns an international dispute.

          The NCC agreement can be recorded in a clause, either before or after the dispute arises. The Court even recommends specific wording:

          “All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”).”

          The phrase “to the exclusion of the jurisdiction of any other courts” is included in light of the Hague Convention on Choice of Court Agreements. It is not mandatory to include it of course and parties may decide not to exclude the jurisdiction of other courts or make other arrangements they consider appropriate. The only requirement being that such arrangements comply with the rules of jurisdiction and contract. Please note that choice of court agreements are exclusive unless the parties have “expressly provided” or “agreed” otherwise (as per the Hague Convention and Recast Brussels I Regulation).

          Parties in a pending case before another Dutch court or chamber may request that their case be referred to NCC District Court or NCC Court of Appeal. One of the requirements is to agree on a clause that takes the case to the NCC and makes English the language of the proceedings. The NCC recommends using this language:

          We hereby agree that all disputes in connection with the case [name parties], which is currently pending at the *** District Court (case number ***), will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or ”NCC District Court). Any action for interim measures, including protective measures, available under Dutch law will be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCC Court of Appeal”).

          To request a referral, a motion must be made before the other chamber or court where the action is pending, stating the request and contesting jurisdiction (if the case is not in Amsterdam) on the basis of a choice-of-court agreement (see before).

          Additional arrangements in the proceedings before the Netherlands Commercial Court

          Before or during the proceedings, parties can also agree special arrangements in a customized NCC clause or in another appropriate manner. Such arrangements may include matters such as the following:

          • the law applicable to the substantive dispute
          • the appointment of a court reporter for preparing records of hearings and the costs of preparing those records
          • an agreement on evidence that departs from the general rules
          • the disclosure of confidential documents
          • the submission of a written witness statement prior to the witness examination
          • the manner of taking witness testimony
          • the costs of the proceedings.

          Visiting lawyers and typical course of the procedure

          All acts of process are in principle carried out by a member of the Dutch Bar. Member of the Bar in an EU or EEA Member State or Switzerland may work in accordance with Article 16e of the Advocates Act (in conjunction with a member of the Dutch Bar). Other visiting lawyers may be allowed to speak at any hearing.

          The proceedings will typically follow the below steps:

          • Submitting the initiating document by the plaintiff (summons or request as per Dutch law)
          • Assigned to three judges and a senior law clerk.
          • The defendant submits its defence statement.
          • Case management conference or motion hearing (e.g. also in respect of preliminary issues such as competence, applicable law etc.) where parties may present their arguments.
          • Judgment on motions: the court rules on the motions. Testimony, expert appointment, either at this stage or earlier or later.
          • The court may allow the parties to submit further written statements.
          • Hearing: the court interviews the parties and allows them to present their arguments. The court may enquire whether the dispute could be resolved amicably and, where appropriate, assist the parties in a settlement process. If appropriate, the court may discuss with the parties whether it would be advisable to submit part or all of the dispute to a mediator. At the end of the hearing, the court will discuss with the parties what the next steps should be.
          • Verdict: this may be a final judgment on the claims or an interim judgment ordering one or more parties to produce evidence, allowing the parties to submit written submissions on certain aspects of the case, appointing one or more experts or taking other steps.

          Continuous updates, online resources Netherlands Commercial Court

          As a final note the English language website of the Netherlands Commercial Court provides ample information on procedure and practical issues and is updated with a high frequence. Under current circumstance even at a higher pace. In particular for practitioners it’s recommended to regularly consult the website. https://www.rechtspraak.nl/English/NCC/Pages/default.aspx

          This is a summary of the approved measures, which unfortunately for both tenants and landlords do not include any public aid or tax relief and just refer to a postponement in the payment of the rent.

          Premises to which they are applied

          Leased premises dedicated to activities different than residential: commercial, professional, industrial, cultural, teaching, amusement, healthcare, etc. They also apply to the lease of a whole industry (i.e. hotels, restaurants, bars, etc., which are the most usual type of businesses object of this deal).

          Types of tenants

          • Individual entrepreneurs or self-employed persons who were registered before Social Security before the declaration of the state of alarm on March 14th, 2020
          • Small and medium companies, as defined by article 257.1 of the Capital Companies Act: those who fulfil during two consecutive fiscal years these figures: assets under € 4 million, turnover under € 8 million and average staff under 50 people

          Types of landlords

          In order to benefit from these measures, the landlord should be a housing public entity or company or a big owner, considering as such the individuals or companies who own more than 10 urban properties (excluding parking places and storage rooms) or a built surface over 1.500 sqm.

          Measures approved

          The payment of the rent is postponed without interest meanwhile the state of alarm is in force, but in any case, for a maximum period of four months. Once the state of alarm is overcome, and in any case in a maximum term of four months, the postponed rents should be paid along a maximum period of two years, or the duration of the lease agreement, should it be less than two years.

          For landlords different to those mentioned above

          The tenant could apply before the landlord for the postponement in the payment of the rent (but the landlord is not obliged to accept it), and the parties can use the guarantee that the tenant should mandatorily have provided at the beginning of any lease agreement (usually equal to two month’s rent, but could be more if agreed by the parties), in full or in part, in order to use it to pay the rent. The tenant will have to provide again the guarantee within one year’s term, or less should the lease agreement have a shorter duration.

          Activities to which it is applied

          Activities which have been suspended according to the Royal Decree that declared the state of alarm, dated march, 14ht, 2020, or according to the orders issued by the authorities delegated by such Royal Decree. This should be proved through a certificated issued by the tax authorities.

          If the activity has not been directly suspended by the Royal Decree, the turnover during the month prior to the postponement should be less than 75% of the average monthly turnover during the same quarter last year. This should be proved through a responsible declaration by the tenant, and the landlord is authorised check the bookkeeping records.

          Term to apply and procedure

          The tenant should apply for these measures before the landlord within one month’s term from the publication of the Royal Decree-law, that is, from April 22nd, 2020, and the landlord (in case belongs to the groups mentioned in point c) is obliged to accept the tenant’s request, except if both parties have already agreed something different. The postponement would be applied to the following month.

          As the state of alarm was declared more than one month ago (March 14th), landlords and tenants have already been reaching some agreements, for example 50% rent reduction during the state of alarm, and 50% rent postponement during the following 6 months. Tenants who do not reach an agreement with the landlord could face an eviction procedure, however court procedures are suspended during the state of alarm. We have also seen some abusive non-payment of rent by tenants.

          When is becomes impossible to reach an agreement with the landlord, tenants have the legal remedy of claiming in Court for the application of the “rebus sic stantibus” principle, which was highly demanded during the 2008 financial crisis but very seldom applied by the Courts. This principle is aimed to re-balance the parties’ obligations when their situation had deeply changed because of unforeseen circumstances beyond their control. This principle is not included in the Spanish Civil Code, but the Supreme Court has accepted its application, in a very restricted way, in some occasions.

          Summary – What can we learn in the time of Covid-19 that can be used in mediation? And what can we learn from mediation to be used in this crisis?

          As you know, mediation is a way to solve conflicts in which the parties keep in their hands the possible solution. They do not need to come to a third party (judge or arbitrator) to impose the answer to them. Parties can imagine more freely what they need, and how to solve their differences.

          Some of the elements and techniques mediators use in a mediation can also be used in and learnt from the current Time of Covid-19. And the current crisis also helps us to understand why they are so important in mediation.

          Cooperation to get the solution is better than unilateral and imposed decisions

          We usually tend to think that cooperation is a sign of weakness and that we recur to it only if we cannot impose or view or win our case. However, as in the time of Covid-19 where countries, scientists and people should fight together, when facing a conflict cooperation and going beyond your positions brings you the possibility to explore solutions that otherwise remain hidden.

          « Now it is increasingly recognized that there are cooperative ways of negotiating our differences and that even if a “win-win” solution cannot be found, a wise agreement can still often be reached that is better for both sides than the alternative. […]

          Three points about shared interests are worth remembering. First, shared interests lie latent in every negotiation. They may not be immediately obvious. Second, shared interests are opportunities, not godsends. Third, stressing your shared interests can make the negotiation smoother and more amicable. » [Fisher, Richard; Ury, William. “Getting to Yes: Negotiating an agreement without giving in”].

          Listening is highly effective

          In the time of Covid-19 we tend to accept better information that confirms our beliefs and we accept better indications that are in accordance with our preferences and beliefs. Nevertheless, also in this time, listening is of essential importance to understand the causes and solutions.

          A mediator will always listen to the parties and will help them to do the same. Listening the other’s side arguments, its explanation of the facts, interests and needs, the reasons for its decisions… is also of utmost importance to find a joint solution.

          «Whether you are a neutral third party (professional facilitator, friend, or manager) or one of the participants, as you listen to all the stories, you begin to sense the best solution. » [Levine, Stewart. “Getting to Resolution: Turning Conflict Into Collaboration.”]

          A solution for me can also be a solution for you

          In the time of Covid-19 it seems clear to all of us that a common solution is the only possible one. A vaccine will save the entire world. In mediation, the main benefit is to understand that, unlike a court judgement or arbitral award, a joint (not imposed) solution is possible and a benefit for me does not imply a damage or a lost for my opponent.

          «A mediator works to understand each disputant’s perspective and to look for the value in it. In this role, you refrain from judging whose side is right or wrong. Instead, you try to see the merit in each side’s perspective. » [Shapiro, Daniel. “Building Agreement”].

          We master the solution and we create the agreement in a safe environment

          The solution to the current crisis does not only depend on the authorities and on the health professionals. A great part of the solution relies on everybody’s participation, washing our hands, respecting the social distance, staying safe at home avoiding contagion and the collapse of hospitals.

          In court we leave the decision of the conflict in the hands of a third party –the judge, the arbitrator­–. In a mediation, on the contrary, the solution remains in our hands. We know what our interests are, we create our agreement. Our imagination is our ally in finding the solution together with the counterparty and the assistance and experience of the mediator who does not impose it but helps the parties to find it. Quite often, what parties could get in mediation goes far beyond what a judge would’ve been able to grant. And this in a confidential environment.

          «The Sage is self-effacing and scanty of words. When his task is accomplished and things have been completed, all the people say, “We ourselves have achieved it!” » [Lao Tzu]

          Emotions do matter

          Good and bad emotions are inevitable. Particularly in periods of uncertainty, crisis and loose of control, we all face strong emotions. This is true in situations like this Covid-19 and in all conflicts, and not only in personal ones. Egos, envies, fears, anxieties… are also part of our day-to-day life, work and business, but they are rarely considered in courts when solving your conflicts. A mediator helps you to take them into account in a safe environment and as a part of the conflict itself.

          «Solving problems seems easier than talking about emotions. The problem is that when feelings are at the heart of what’s going on, they are the business at hand and ignoring them is nearly impossible. » [Stone, Douglas. “Difficult Conversations: How to Discuss What Matters Most”].

          Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19, even though it affects and produces effects in many different legal fields, does not include any reference to contracts for leases of real estate, or houses, premises or offices.

          The purpose of this note is to analyze the effects of the situation of the State of Alarm regarding those leases of offices or premises that have been forced to close in application of the decree; those others that remain totally or partially open and in operation, although with a reduced or minimal activity, in principle are not subject to the conclusions reached below without prejudice to the fact that there are individualized cases to which, despite the fact that there is not a complete closure, reasonably and logically can be applied to them.

          It is not excluded in any way that in the event of an extension of the validity of the State of Alarm, a regulation that affects the leasing contracts could be published, but for the moment this has not happened. If this were to happen, the content of said norm would apply.

          Based on the principle of freedom of covenants enshrined in art. 1255 of the Spanish Civil Code, which allows the parties signing the contract to agree (i) what scenarios and situations should be considered as constituting cases of Force Majeure and Act of God and (ii) what the contractual consequences of such scenarios should be, the first exercise that must be done is to check if the contract includes a regulatory clause of Force Majeure and its effects; if so, such clause must be followed and its analysis is left out of this note.

          In the absence of express regulation in the contract, the provisions of the Civil Code and specifically article 1105 would apply.

          COVID-19 as Force Majeure

          COVID-19 is an event that in principle meets the requirements of the Civil Code to be classified as an event of Force Majeure (art. 1105 Civil Code) since:

          • It is a foreign act and not attributable to the contractor who is the debtor of the benefit or obligation.
          • It is unpredictable, or if it were said to be “predictable”, it is certainly inevitable.
          • The event in question, the pandemic, must be a cause and result in the breach of the obligation, that is, there must be a causal link.

          Therefore, fulfilling the three requirements, the first conclusion that we reach is that very foreseeably, the Spanish Courts will classify as “Force Majeure” the situation caused by COVID 19 when a judicial dispute is raised in which such matter is discussed between litigants. We will now analyze the consequences of this status.

          Consequences of considering COVID-19 as an event of Force Majeure

          Most of the doctrine and jurisprudence understand that the effects of classifying a scenario as a case of Force Majeure in principle are:

          • Total and definitive impossibility of complying; releasing the debtor from the fulfillment of the obligation.
          • Partial inability to comply; the debtor is released only in the part that it is impossible to fulfill, but still bound by the part that can be carried out.
          • Temporary inability to comply; the debtor is released from the responsibility for default as long as the exceptional situation persists.

          Now, let us analyze how it would affect to considerate the epidemic as Force Majeure in relation to lease agreements for uses other than housing.

          Regarding the payment of rent

          The question to answer is if the classification of the current pandemic situation as a case of Force Majeure frees the tenant (whose premises have been forced to close by order of the government authority) from the obligation to pay the rent while said closing obligation persists, including in the concept of “release” different alternatives: total or partial cancellation and / or total or partial postponement.

          We are meeting these days with a frequent reaction among some tenants, who, unilaterally have informed their landlords that considering COVID 19 an event of force majeure and having been forced to close the premises / office, they suspend the payment of the rent while said situation remains. They do not terminate the contract, they do not hand over the possession, they remain in it (the premises remain closed and not operational) but they suspend the payment (it is not clear whether suspending in this case means liberating himself from the payment of the rent or postponing its payment for when the Force Majeure scenario ends).

          Arguments against liberation

          As much as this attitude can be considered “understandable” from the perspective of the lessee, not from the point of view of the lessor, said consideration runs into an obstacle: the interpretation of the Force Majeure made by the Supreme Court regarding pecuniary payment obligations, according to the Civil Sentence of May 19, 2015:

          “Not being able to consider, in the case of pecuniary debts, the subjective impossibility – insolvency – nor the objective or formal imposition, the doctrine concludes that it is not possible to imagine that if the impossibility is due to a fortuitous event it could have as effect the extinction of the obligation.

          The exoneration of the debtor by fortuitous event is not absolute, it has exceptions, as provided for in article 1105 CC, and one of them, by application of the “genus nunquam perit” principle, would be in cases of obligations to deliver generic things.

          In such circumstances, the pecuniary debtor is obliged to fulfill the main obligation, without the economic adversities freeing him from it, since what is owed is not something individualized that has perished, but something generic such as money”.

          In conclusion: it does not seem that this jurisprudential criterion allows to defend that the fulfillment of the pecuniary obligations is released, extinguished or that its breach is justified in cases of Force Majeure, therefore the pecuniary debtor, in this case the lessee, in application of this criterion and due to the generic condition of the money, would be obliged to fulfill his main obligation not being freed from it by the unforeseen economic adversities on the basis of Force Majeure.

          Arguments in favor of liberation: art. 1575 of the Civil Code

          Having said the foregoing, reference should be made to an article of the Civil Code that, with certainty, will be profusely cited in the upcoming judicial conflicts.

          The art. 1575, dealing with the leasing of rustic estates, recognizes the lessee’s right to the reduction of rent in the event of loss of more than half of the fruits (unless otherwise agreed) in “fortuitous, extraordinary and unforeseen cases … such as fire, war, plague, unusual flood, locust, earthquake or another equally unusual that the contractors have not been able to rationally foresee ”.

          Is this article, foreseen for rustic leases, applicable to urban leases?

          The art. 4.1 CC allows the analogical application of the rules when (i) they do not contemplate a specific assumption and (ii) they regulate a similar situation in which “identity of reason” may be appreciated.

          The Sentence of the Supreme Court from January 15, 2019, that solved a conflict of a lease of a building used as hotel, in which the tenant had sought the reduction of the rent under the clause “rebus sic stantibus” by the crisis of 2008 and had alleged in his favor the application of art. 1575, established:

          “The argumentation of the appealed judgment rejecting the claim to lower the agreed price is also not contrary to the legal criterion that follows from art. 1575 CC, which is the rule that allows the reduction of income in the leasing of productive assets that do not derive from risks of the business itself, it also requires that the loss of benefits originates from extraordinary and unforeseen fortuitous cases, something that by its own rarity could not have been foreseen by the parties, and that the loss of fruits is more than half of the fruits. In this particular case, none of these circumstances concur. The decrease in rents comes from market developments, the parties anticipated the possibility that in some years the profitability of the hotel would not be positive for the lessee and the losses alleged by NH in the operation of the Almería hotel are less than fifty per hundred, without taking into account that the overall result of his activity as manager of a hotel chain is, as the Audience considers proven in view of the consolidated management report, positive”.

          The Supreme Court does not admit the application of art. 1575, but not because it is considered not applicable to non-rustic leases, but because the Court concludes that the requirements are not fulfilled since the 2008 crisis was neither unpredictable and because the lessee’s losses do not exceed 50%.

          But, that interpretation of the Supreme Court together with the wording of art. 4.1 CC would support the claim of the lessee who has no incomes during the State of Alarm to demand a reduction in rental fee that fits the principle of proportionality.

          Regarding early termination at the request of the lessee

          However, we may find situations in which the lessee considering the current situation, decides to terminate the lease in advance, delivering the premises to the lessor.

          They are cases in which the early termination of the contract is intended, without respecting (i) or the mandatory term (ii) or the previous notice, in both cases under the hypothesis that they are thus regulated in the contract.

          In these scenarios, we understand that it may be defendable that, due to the situation of force majeure caused by COVID 19 and in application of art. 1105 of the CC, the lessee is exempt from the obligation:

          1. To respect the mandatory term of the lease
          2. To give prior notice to the lessor in case of early termination of the contract

          In both cases, the contract would be terminated with the delivery of possession of the premises, without prejudice to having to respect the other obligations set forth in the contract for termination and delivery, provided that they are not equally affected by the situation of Force Majeure.

          Our opinion is that, also in application of Article 1,105 of the CC, the thesis that the lessee would be released from any obligation to compensate damages to the lessor for said advance resolution or breach of the obligatory duration of the contract could be defendable before the Courts.

          Conclusion

          In conclusion, when the Courts decide on the effects of the current pandemic (that they will surely classify as Force Majeure), and how this will affect the obligations of leaseholders who have been forced to close their business, our opinion is the following:

          • Regarding the obligation to pay the rent, despite the contrary criterion of the sentence from May 19, 2015, we find defendable the analogue application of art. 1575 of the CC, based as well on the Supreme Court Sentence from January 15, 2019, in order to demand a proportional and equitable reduction of the rent.
          • Regarding the power of the leaseholder to terminate the contract in advance, in case the leaseholder hands the possession of the property to the lessor, we find defendable to exonerate the leaseholder from complying with the advance notice or mandatory term in case provided in the contract, without the obligation to indemnify the lessor for this reason.

          Application of the Rebus Sic Stantibus clause (“RSS” clause)

          We will analyze below if the RSS clause can be applicable to the case that we are studying and with which consequences.

          Requirements of the RSS clause (Latin aphorism that means “things thus standing”)

          The principle RSS operates as an intrinsic clause (that is, implicit, without the need to expressly agree by the parties) in the contractual relationship, which means that the stipulations established in a contract are so in view of the concurrent circumstances at the time, that is, “things thus standing”, so that any substantial and unforeseen alteration of the same could lead to the modification of the contractual content.

          The RSS clause is not regulated in any article in our laws; It is a doctrinal construction that the jurisprudence has traditionally admitted (examples among many other Supreme Court Sentences from June 30, 2014, February 24, 2015, January 15, 2019, July 18, 2019), with great caution, only in certain cases, and requiring the following requirements:

          • That there has been an extraordinary alteration in the circumstances of the contract, at the time that it must be fulfilled, in relation to those present at the time the parties entered the contract.
          • To analyze whether an incident can determine the extraordinary alteration of the circumstances that gave meaning to the contract, we must a) contrast the scope of said alteration regarding the meaning or purpose of the contract and the commutativity or performance balance thereof; and b) the “normal risk” inherent or derived from the contract must be excluded.
          • That there has been an exorbitant disproportion, out of all calculation, between the obligations of the contracting parties, causing an imbalance between them.
          • That the above occurs because of radically unpredictable circumstances.
          • That there is no other remedy to overcome the situation.

          Historically, our courts have been very reluctant to apply RSS, although since the economic crisis of 2008-2012 there has been a certain change in criteria and greater jurisprudential receptivity.

          Consequences of the application of RSS

          The doctrine establishes that the application of the RSS does not have in principle terminating effects on the contract, but only modifying effects, aimed at compensating the imbalance of obligations between the parties;  the doctrine establishes that this only applies to long-term contracts or successive contracts with deferred execution.

          In application of the good faith principle, the reaction to an event of fortuitous event, force majeure or, in general, an event that generates a disproportion between the parties, such as that regulated by the RSS clause, should be the amendment of the contract to rebalance the obligations between the parties, and only in the event of material impossibility to comply with the obligations, the resolution of the obligation, in both cases without compensation for non-compliance.

          For this reason, in relation to leasing contracts and in case of closure of the premises by mandatory mandate, we understand that the RSS clause may be:

          • alleged by the leaseholder to request or urge the lessor to downsize or postpone payment.
          • estimated by the judges, when these assumptions are debated before the Courts, when accepting such contractual amendment as equitable and legitimate in order to compensate the imbalance generated by the effects of COVID 19.

          To summarize, the RSS clause can be a tool for the leaseholder that has had to close its premises during the State of Alarm, when negotiating with the lessor an amendment of the contract, trying to postpone the rent while the State of Alarm or negotiating a discount.

          We should bear in mind:

          • That the RSS clause is unavoidably applicable on a casuistic basis, there are no generalizations and it will be necessary to take into account the effect caused by COVID 19 in each specific contractual relationship (Supreme Court Sentence from June 30, 2014 and February 24, 2015) and the real imbalance of benefits produced, and
          • That, as we have said, the Courts are generally reluctant to apply this clause, that they only apply in the absence of any other legal tool and in situations in which the maintenance of the contractual status quo reveals a manifest “injustice ”and a evident and resounding imbalance between the performance of the parties.

          Does this mean that the leaseholder may impose on the lessor a modification of the economic conditions of the contract under the RSS clause (postponement or total or partial cancellation of the payment)?

          We cannot assure this, what we think is that the application of this RSS clause should:

          • Justify a reasonable request from the leaseholder to temporarily change the conditions of the contract (postponement or cancellation, total or partially) that the lessor must reasonably meet.
          • In case of unreasonable refusal of the lessor, we recommend to document as much as possible leaseholder´s request and the possible negotiations or refusal, in order to substantiate a suspension of the payment of the rent, total or partial, during the State of Alarm aimed, not to extinguish his obligation, but to postpone it.

          We will have to wait for the reaction of the Courts when they judge these conflicts, but if we dare to anticipate that it is quite possible that the judicial tendency will be to grant protection to the leaseholder with support in the RSS clause and the principle of business preservation, when it comes to validating certain modifying effects regarding the payment obligations of the leaseholder (total or partial remission of the rent payment during the pandemic crisis, postponement, or partial postponement).

          In any case, it will be essential to prove, that the behavior of the leaseholder seeking protection in the RSS clause to amend the contract, has been strictly adjusted to the principle of good faith (Supreme Court Sentence from April 30, 2015).

          It will also be important to analyze case by case why the displacement of the risk derived from the “exceptional and unforeseen event” from one contractor to the other is justified (Supreme Court Sentence from January 15, 2015) and could well be defended (Supreme Court Sentence from July 18, 2019) that both contracting parties must divide and assume the consequences between the two of them. The judicial decisions will vary in each specific case.

          Conclusions and Recommendations

          In conclusion, it seems that the leaseholder would have two instruments in order to try to successfully suspend or postpone the payment of the rents, the RSS clause and the principle of Force Majeure.

          In our view, the replacement of the contractual balance altered by the exceptional event, may consist of either an extension of the lease payment terms or the application of a total, or partial cancellation of the rental payment obligation while it lasts the State of Alarm, but we understand that it will be defendable that the delay in the payment may not give rise neither to the termination of the contract under art. 1124 Cc nor to the requirement of damages art. 1105 Cc, therefore, will not empower the lessor to urge eviction.

          Therefore, the steps to be followed in each case would be:

          • Carry out an examination of the contract to check whether force majeure and acts of God are regulated and if the current situation is in accordance with the contract provisions.
          • Should nothing be set forth at the contract, and in case the leaseholder has had to close the premises or office, notify the other party of this circumstance and try to negotiate a novation of the lease requesting:
            • Waiver of the payment obligation during the Alarm State.
            • The application of a discount on the payment obligations with both parties sharing the effects of the pandemic, in a proportion to be agreed.
            • Postponement of payment obligations until the premises or office can be reopened with a payment plan for the deferred debt.

          If it is not possible to reach an agreement, it is advisable to try to maintain evidence that the parties have acted in good faith trying to reach a negotiated solution and at the extreme (from the leaseholder´s point of view) announce, without waiting to receive a communication or claim from the Lessor, the suspension of the rental fee payment until reopening of the premises/offices, justifying the same in the Alarm State.

          《法国商业法》规定，贸易商在未给予充分书面通知的情况下终止书面合同或非正式商业关系(第442-1.1条)将被制裁。在过去的二十年中，这已成为商业关系或合同终止（全部或部分终止）时所有补偿行为（最高可达24个月的毛利率以及其他损害赔偿）的经常性法律依据。

          因此，与法国公司签约的外国贸易商应尽量避开该规则的管辖范围 (第一部分)，如果不能，则应理解并控制其实施 (第二部分)。

          简而言之

          外国公司如何避免或控制与法国法律规定的“突然终止商业关系”有关的风险？

          与法国公司做生意的外国公司应该这样做：

          • 与法国供应商或客户尽快达成书面（框架）协议，即使是非常简单的关系也是如此；
          • 规定一项有利于外国法院或仲裁以及外国适用法律的条款，而如果不能选择该条款，则只能服从法国法院和法律。

          外国公司如何才能掌控法国法律规定的“突然终止商业关系”的风险?

          与法国公司做生意的外国公司应该这样做：

          • 要知道，本条适用于几乎所有类型的商业关系或合同，无论是书面的还是非书面的，无论是定期的还是非定期的;
          • 检查其关系/合同是否期限足够且正常和重要，以及对方是否有合理理由相信该关系/合同会继续维持；
          • 给出终止或不续约（甚至是重大修改）的书面通知，其期限主要考虑到关系的持续时间，与合同通知的时限无关；
          • 谨慎地劝告当事方在遭遇不可抗力和严重过失的情况下，搁置“突然终止”；
          • 如果没有充分的通知，则预计赔偿金额为为每月平均毛利率与未获批准的事先通知的期限之积。

          如何避免适用法国的“突然终止”规则?

          在国际事务中，外国公司必须预见其关系是否将受到法国法律的管辖，并且在发生争议的情况下，是否将其关系提交到法国法院。

          “突然终止合同”的法律适用范围是什么?

          对于一个外国公司来说，要正确地掌握适用于“突然终止”的法国法律冲突法规则框架是相当困难的。巴黎上诉法院在2018年9月19日的裁决（RG 16/05579，DES / 娇韵诗）中隐含提及Granarolo欧盟裁决（07 14 16，N°C196 / 15），该裁决将合同资格扩展至大多数业务关系，以改善可预见性，来应对外国公司试图排除法国法律及其“突然终止”规则的行为。

          突然终止书面合同或“默认合同关系”

          根据关于合同适用法律的罗马一号法规 (EC No 593 / 2008，2008年6月17日)：

          • 如果当事各方选择了外国法律：选择外国适用法律的条款将是有效的，并将受到法国法官的尊重 (服从OMR，请参阅下文)，前提是当事各方选择的法律是明示或确定的。
          • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为它可能也是分销商/加盟商所在国的法律等，或是提供合同服务功能的当事方所在国家/地区的法律。

          突然终止“非默认合同关系”

          如果是非正式关系 (即偶尔下达订单)，法国法官将保留侵权行为资格，并将参考适用于非合同义务法律的《罗马二号条例》(第864/2007号，2007年7月11日)。

          • 如果当事各方选择了外国法律：法国法官应执行草拟的外国法选择条款，条件是该条款明确包含侵权案件。
          • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为这可能是损害发生的国家/地区的法律（无论是发生事件的地点还是造成间接后果的地点），是法国受害者遭受终止结果的总部所在地。

          “突然终止合同”是法国的一项压倒一切的强制性规定吗?

          法国法院的立场相当模糊且令人不满。 简而言之：巴黎商事法庭认为“突然终止”不是OMR，巴黎上诉法院（负责“突然终止”案件的唯一法国上诉法院）却支持OMR资格，而最高法院……对此事保持沉默。尽管罗马一号条例（或罗马二号）第9.1条缺乏严格的推理和理由，但很明显，巴黎上诉法院有司法意愿将“突然终止”归为OMR。 因此，如果向法国法院提出“突然终止”的要求，则该法国法院极有可能排除适用的外国法律，而将其替换为产生于第L 442-1. II条“突然终止”。

          因此，外国公司确保“突然终止”不会妨碍合同的终止或停止续签的唯一可能性，不仅是选择一项适用的外国法律，而且是确保将争端提交外国法官或仲裁庭。

          如何避免法国法院对“突然终止”索赔的管辖权?

          “突然终止”索赔和欧盟内部共同承包商

          欧洲法院的裁决(Granarolo, 2016年7月14日，NC196/15)区分了以下索赔:

          • 书面框架合同或默认合同关系 (仅当欧洲法院所列出的证据由国家法官确定时才存在，即相互承认的关系和承诺的限期，如排他性、特价或交货与付款条件、竞业禁止等)：根据布鲁塞尔一号重铸条例下的管辖权冲突规则，此类索赔具有合同性质；
          • 非正式关系——一种非默认的合同关系 (即不时下达的命令)：在布鲁塞尔一号重铸条例下这样的请求具有侵权性质。

          （a）谁是“突然终止”书面合约或“默契合约关系”的法官?

          • 为了外国法院的利益，管辖权条款将由法国法院执行，即使它是一个不对称的条款 (最高法院，2015年10月7日，Ebizcuss.com / 苹果销售国际)。
          • 在缺乏法院条款选择的情况下，如果以“突然终止”为基础提起诉讼的法国索赔人是服务提供者，例如分销商，代理人等，则法国法院可能具有管辖权 (请参阅欧洲法院 Corman Collins案， 19 12 13，C-9 / 12和布鲁塞尔一号重铸条例第7.1.b.2条)。

          （b）谁是“非默认合同关系”“突然终止”的法官？

          • 我们认为，法国法院可能会继续执行侵权案件中的管辖权条款，特别是明确包含侵权诉讼的条款 (最高法院，1°Ch.Civ.，2017年1月18日，n°15-26105，里维埃拉汽车/阿斯顿马丁拉贡达有限公司)。
          • 在缺乏法院条款选择权的情况下，法国法院将对“突然终止”索赔具有管辖权，所以由位于发生损害事件地点的法官（布鲁塞尔一号第7.3条）负责，而该地点是“突然终止”生效的地方……即如果法国公司是受害者，该地点就在法国。

          “突然终止”索赔和非欧盟共同承包商

          如果一名法国受害者基于非欧盟公司的“突然终止”向法国法院提出索赔，Granarolo解决方案将不在事实上适用。在非欧盟关系中，法国法官只能继续保留侵权资格。在这种情况下，法国法院可以根据损害事件发生的地点保留其管辖权。然而，即使是基于侵权的索赔，在法国也可以承认管辖权条款。

          “突然终止”索赔和仲裁

          制定一项临时条款或机构仲裁条款可能是规避法国法院管辖权的最安全解决方案。理想情况下，该条款将在法国境外确定仲裁庭的席位。根据仲裁员的胜任力原则，法国法院宣布其自身无能力仲裁，除非仲裁条款明显无效或明显不适用，无论合同或侵权理由如何 (特别参见巴黎上诉法院，2019年9月5日，n / 17/03703)。

          结论：外国公司不应公开管辖权和管辖法律问题。他们必须协商出一个安全港湾，否则，被终止的法国受害人将可能有权向法国法官提出“突然终止”的要求（请参阅下面第2部分的内容）

          如何掌握“突然终止”法律的规则?

          在法国法律适用的情况下，外国公司将面临法国商业法典L442 -1.II条对“突然终止”的制裁。 作为一项初步说明，首先必须知道，“突然终止”责任的执行是通知时间太短的结果。 因此，该方案没有制定自动补偿规则。换句话说，一旦终止的发起人发出了合理的通知，基于该通知的责任就可以被免除。

          “突然终止”的先决条件：已建立的商业关系

          所有合同均受该法律制度的约束，法规中规定了特定终止通知的合同除外，例如商业代理合同和公路分包合同的货物运输。

          首先，必须存在一种可以通过书面合同或事实上当事双方的行为所证明的关系。这种关系可以建立在一系列默认续签的合同或由多个订单实现的正常业务流程基础之上。

          第二，这种关系必须具有既定的特征。没有法律定义，但是判例法年复一年地对这一概念进行了界定，判例法已经建立了一个客观标准和一个更主观的标准。

          (a) 客观标准意味着双方之间有足够长期、经常和重要的关系。关系的持续时间是最重要的标准。这种关系必须是有规律的，也就是说，它不能被打断(太频繁或太长时间)。这种关系最终必须是有意义的，并且在数量或价值上代表双方之间的业务流。

          (b) 主观测试主要侧重于受害人在基于事实层面上认为继续的合同/关系（例如投资要求，几年内的预算等）将走向破裂的合理信念。相反，正是基于对共同的未来缺乏合理信念的结果，即当终止方多次提出招标要求时，终止方可以证明其缺乏稳定的品格 (除非这是一个诡计)。

          提前预计“突然终止”索赔

          (a) 终止可以是全部或部分的

          完全破裂是通过关系的完全终止来实现的，例如终止合同、停止买方发送订单或停止供应商记录订单。但是要处理的最复杂的情况是所谓的部分破裂，它是通过对部分影响关系但不会将其减少为零的部分进行修改而得出的 (例如：价格上涨或下跌，付款或交付条件的改变)。

          (b) 终止必须以合理的事先书面通知为准

          通知必须以书面形式通知。没有书面通知本身就是一种违约行为。通知必须清楚地反映一方当事人全部或部分断绝关系的意愿，并且必须清楚地表明这一意愿。双方必须区分正式违约通知函和随后发出的违约通知（如适用）。在通知期间内，双方必须完全遵守所有合同条件。

          在2019年改革之前，法国法律没有明确规定应遵守的事先通知的期限。如果判例法规定了若干标准，则应当指出，最重要的标准是关系的持续时间。法官还考虑到受害人所占的营业额份额、领土排他性的存在与否、产品的性质和活动的范围、受害者进行投资的重要性（特别是对于所涉关系的投资），最后是经济依赖的状态。法官们发出通知的时间长短不一。对通知的评估是逐案进行的。即使是几乎对于一段关系中的一年，也可能需要一个月的通知时间（根据关系中的其他标准进行上下调整），很难给出一个黄金法则。2019年4月24日的法令根据第l442 -1. i条把合理到期的通知期限限制为18个月。但大部分诉讼仍存在不确定性，因为只有特别长寿或特别敏感的关系，才可能导致高于18个月的通知分配时间。

          法官不受合同规定的合同通知书的约束。但是，如果违约方还违反了合同规定的终止条款和条件，则受害人可以在突然终止的侵权基础上，或违反合同义务的基础上，追究违约方的责任。

          排除“突然终止合同”的情况

          法律制度规定了两种情况，而判例法似乎还规定了其他情况。

          (a) 两个法律例外分别是不可抗力（很少被法院神圣化）和遭受终止的受害者的过失，判例法补充说，这必须是对合同承诺或法律规定（如不尊重排他性、竞业禁止、保密或变更控制责任，或未按合同规定支付到期金额）的严重违反。

          当然，法官们认为自己不受界定什么构成严重不当行为的终止条款的约束。在任何情况下，因严重不当行为而终止协议的一方必须在终止协议书中明确通知对方。最重要的是，严重的不当行为会导致通知的缺少，因此，如果终止方指控严重的不当行为，但给予通知，无论是哪种情况下，法官都可能会得出结论，认为该过失不够严重。

          (b)  近年来，判例法增加了其他免责的案例。在这种情况下，破裂是由当事方以外的原因造成的，如经济危机，上游或下游自身客户或供应商的损失。

          无论其期限是什么，法官们还排除了定期合同第一个期限结束的假设中的“突然终止”：合同的首次续签对合同破裂的受害者构成可预见的事件，这就排除了残暴的概念；但一旦合同至少续签了一次，法官随后就可以描述受害者对新的默认续签的合法信念。

          “突然终止”的赔偿

          法官只赔偿暴力行为本身的破坏性后果，但至少在第L442-1.II条的范围内，不赔偿违约行为本身的后果。

          基本规则非常简单：必须确定应授予的通知的期限，从中减去实际授予的通知期限。该净通知时间乘以受害人的平均每月毛利率，或在更通常的情况下，是乘以可变成本的利润，不包括因不履行合同/关系而消失的成本。被告应毫不犹豫地索要完整的会计证据，尤其是确定（较低的）利率，甚至要求就这些会计要素提供司法专业知识。通常，平均每月利润的基数包括最近24或36个月。

          通常，以平均保证金计算的补偿不包括任何其他补偿。但是，受害人可以证明其由于关系破裂的残酷性而遭受了其他损失。例如由于这种野蛮行为直接导致的被解雇或受害者最近进行的投资贬值。

          在预测“突然终止”时的一些实用技巧

          即使法律制度仍然模棱两可，判例法极其苛刻，无法发布强有力的指导方针，但在公司计划终止一段关系/合同时，以下是一些实用建议：

          • 如果定期合同可以默认续签，不续签通知必须在合同通知开始之前提前较长时间发出，以避免出现必须在不续签合同与不充分的通知之间作出选择或同意在新的期限内续签合同的情况;
          • 当商业团队过于激进地改变商业关系/合同的执行条件时，必须让他们意识到部分突然终止的风险；
          • 在某些情况下，发送一份带有“通知建议”的提前终止通知可能有帮助，以便尝试与另一方确认该通知；
          • 在某些关系中，根据产品线的性质，以不同的通知期限来通知关系的结束也是有用的；
          • 最后，最好的方法是缔结关系终止协议，确定通知的期限，并在必要时规定订单的逐步递减，这在和解协议的框架内是完整的，该协议最终将放弃任何索赔 ，包括“突然终止”。

          在进入关系期限的最后阶段时，应考虑“突然终止”制度：必须仔细规划合同（或事实上的关系）终止的方式，以便掌控给对方造成损害和被起诉要求赔偿的风险。

          QUICK SUMMARY: Contract negotiations do not take place in a legal vacuum. A party who negotiates contrary to the principle of good faith and then breaks off negotiations may become liable to the other party. However, the requirements for such liability are high and the enforcement of damage claims is cumbersome. At the end of the post I will share some practical tips for contract negotiations in Switzerland.

          Under Swiss law, the principle of freedom of contract is of fundamental importance. It follows from the freedom of contract that, in principle, everyone is free to enter into contract negotiations and to terminate them again without incurring any liability. A termination of contract negotiations does not have to be justified either.

          However, the freedom of contract is limited by the obligation to act in good faith (cf. article 2 para. 1 of the Swiss Civil Code), which is of equal fundamental importance. From the moment when parties enter into contract negotiations, they are in a special legal relationship with each other. That pre-contractual relationship involves certain reciprocal obligations. In particular, the parties must negotiate in a serious manner and in accordance with their actual intentions.

          Negotiating parties must not stir up the hope of the other party, contrary to their actual intentions, that a contract will actually be concluded. Put differently, a party’s willingness to conclude a contract must not be expressed more strongly than it actually is. If a party realizes that the other party wrongly beliefs that a contract would certainly be concluded, such illusion should be dispelled in due course.

          A negotiating party that terminates contract negotiations in violation of these principles, whether maliciously or negligently, may become liable to the other party based on the culpa in contrahendo doctrine. However, such liability exists in exceptional cases only.

          • The fact that contract negotiations took a long time is not sufficient for incurring such liability. The duration of negotiations is, in itself, not decisive.
          • It is not possible to derive liability from pre-existing contractual relationships between the negotiation parties, as for example in cases where parties negotiate a “mere” prolongation of an existing agreement. The decisive factor is not whether parties were already contractually bound before, but only whether the party that terminated the contract negotiations made the other party believe that a new agreement would certainly be concluded.
          • It is not decisive whether the party who terminates contract negotiations knows that the other party has already made costly investments in view of the prospective contract. In principle, anyone who makes investments already prior to the actual conclusion of a contract does so at its own risk. Even where a party to contract negotiations knows that the other party has already made (substantial) investments in the prospective agreement, a termination of the contract negotiations will, in itself, not be considered as an act of bad faith.

          What does a liability for breaking off negotiations include?

          If a party violates the aforementioned pre-contractual obligations, the other party may be entitled to compensation for the so-called negative interest. This means that the other party must be put in the position it would have been if the negotiations had not taken place. Damages may include, e.g., expenses in connection with the negotiation of the contract (travel costs, legal fees etc.), but also a loss of income in cases where a party was not able to do business with third parties because of the contract negotiations. However, the other party has no right to be treated as if the contract had been concluded (so-called positive interest).

          Having said that, it must be kept in mind that the requirements set by Swiss court for the substantiation of damages are rather high, so that the enforcement of a liability for breaking off negotiations will often be a cumbersome process. Therefore pursuing damage claims with relatively low amounts in dispute might often require a disproportionate effort.

          Practical tips – Do’s and don’ts when negotiating contracts

          • Do not overstate your willingness to conclude a contract. Be frank with your counterparty. Make it clear from the beginning of the negotiations what clauses are important to you.
          • Do not tell the other party that you are willing to sign a contract, if you still have doubts or you are even unwilling to do so. Confirm that you will sign only if you are convinced to do so.
          • Do not allow someone else (e.g., a representative, employee, branch office etc.) to negotiate on your behalf if you are not willing to enter into an agreement anyway. Keep an eye on how the negotiations are going on and intervene if necessary.
          • Do not make costly investments before a legally binding agreement is concluded. If, for time or other reasons, such investments are necessary already before the conclusion of an agreement, insist on the conclusion of an interim contract governing such investments for the event that the envisaged agreement is not concluded finally.

          In 2020, an important revision of the Swiss statute of limitations enters into force. The new law provides for longer limitation periods in cases of personal injury and extends the relative limitation periods in tort and unjust enrichment law from one to three years.

          Background of the revision

          In June 2018, the Swiss parliament adopted an amendment to the Swiss Code of Obligations (“CO”) pertaining to a revision of the statute of limitations. In November 2018, the Swiss government decided that the revised statute of limitations shall enter into force on 1 January 2020.

          The revision was significantly influenced by asbestos cases. Under the current law, damage claims of asbestos victims were time-barred in some cases even before asbestos-related diseases could be diagnosed. In March 2014, the European Court of Human Rights held in Howald Moor and others v. Switzerland that the Swiss statute of limitations amounts in such cases to a violation of article 6 paragraph 1 of the European Convention on Human Rights (right of access to a court).

          Having said that, the revision does not only concern cases of personal injury, but also includes numerous other important changes as described in the following.

          Key changes regarding limitation periods

          A. Tort law

          In tort law, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable (revised Art. 60 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

          With the exception of cases of personal injury, the absolute limitation period remains ten years as from the date when the conduct that caused the damages occurred or ended (revised Art. 60 para. 1 CO).

          In cases of personal injury, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable. Currently the relative limitation period amounts to one year only.

          The new absolute limitation period in cases of personal injury amounts to twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 60 para. 1bis CO). Under the current law, there was no special absolute limitation period for cases of personal injury, so that the ordinary 10-year period applied (Art. 60 para. 1 CO).

          If conduct, which gives rise to liability under tort law, is also punishable under criminal law, the (longer) limitation period under criminal law remains applicable (cf. Art. 97 of the Swiss Criminal Code). However, where a first-instance criminal judgment is rendered before the conduct is time-barred under criminal law, the limitation periods ends not earlier than three years as from that criminal judgment (revised Art. 60 para. 2 CO). The current law does not provide for such an additional three-year limitation period.

          B. Unjust enrichment law

          In unjust enrichment law, the new relative limitation period amounts to three years as from the date on which the injured party knows about the claim (revised Art. 67 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

          The absolute limitation period is not affected by the revision and remains ten years after the date on which the claim arises (revised Art. 67 para. 1 CO).

          C. Contract law

          With regard to contractual claims, the ordinary limitation period remains ten years from the due date (Art. 127 CO). Furthermore, the shorter limitation period of five years from the due date applicable to (amongst others) claims for rent, interest on capital and other periodic payments, (most) claims out of employment relationships etc. remains unchanged too (Art. 128 CO).

          However, in cases of personal injury, the revised statute of limitations introduces a new relative limitation period of three years from the date on which the injured party became aware of the damage, as well as a new absolute limitation period of twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 128a CO). The current law does not provide for distinct relative and absolute limitation periods for contractual claims in cases of personal injury. Instead, the ordinary ten-year limitation period (Art. 127 CO) usually applied to such cases.

          D. Summary

          In summary, the most important elements of the revised statute of limitations are the longer (trebled) relative limitation periods in tort and unjust enrichment law (i.e., three years instead of one year) and the new special rules for cases of personal injury, which now benefit from a 20-year absolute limitation period.

          Transitional provisions / application of the revised statute of limitations to pre-existing claims

          The longer limitation periods under the revised CO apply to any claims that are not yet time-barred when the revision enters into force (i.e., on 1 January 2020; revised Art. 49 para. 1, Final Title of the Swiss Civil Code). In other words, the limitation periods of any claims that do not become time-barred until 31 December 2019 at the latest will be prolonged. This is of particular relevance with regard to claims based on tort and unjust enrichment; the short one-year relative limitation periods under the current law will be extended by another two years.

          In contrast, the current law remains applicable in case the revised statute of limitations provides for shorter limitation periods (revised Art. 49 para. 2, Final Title of the Swiss Civil Code). This concerns, in particular, contractual claims in cases of personal injury. The new three-year relative limitation period under the revised law might not apply to such claims, as the current statute of limitations does not provide for a relative limitation period at all.

          Further changes brought by the revision

          In addition to the changes of the limitation periods set out above, the revision of the statute of limitations contains numerous further modifications. Some of them are listed in the following:

          1. Limitation periods do not commence or are suspended in the event that a claim cannot be asserted for objective reasons before any court worldwide (revised Art. 134 para. 1 no. 6 CO). The current law provides for such non-commencement or suspension only if the claim cannot be brought before a Swiss court.
          2. Parties to a dispute may agree in writing that limitation periods shall be suspended during settlement discussions, mediation proceedings or other out-of-court settlement proceedings (revised Art. 134 para. 1 no. 8 CO).
          3. Once a limitation period has commenced to run, waivers of statute of limitation defenses are admissible, but must not exceed ten years (revised Art. 141 para. 1 CO). Any such waivers must be in writing (new Art. 141 para. 1bis CO).
          4. In general terms and conditions (“GTC”), statute of limitation defenses may be waived by the party who makes use of the GTCs only. In contrast, a waiver by the party on whom the GTCs are imposed (e.g., consumers) is ineffective (new Art. 141 para. 1bis CO).
          5. The limitation period for an actio pauliana under the Swiss Debt Enforcement and Bankruptcy Act (“DEBA”) is extended to from currently two years to three years after service of a loss certificate, the opening of bankruptcy proceedings or the confirmation of a composition agreement with an assignment of assets (whichever is applicable; revised Art. 292 DEBA).

          If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.

          Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.

          In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.

          Europe

          Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.

          Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.

          Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.

          Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.

          Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.

          However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.

          Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?

          If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.

          An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.

          The race to regulating DLT in Europe

          Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.

          EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.

          Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.

          In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.

          France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.

          Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.

          Conclusions

          To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.

          To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.

          The author of this post is Alessandro Mazzi.

          Agata Adamczyk

          业务领域

          • 契约
          • 公司法
          • 诉讼
          联系方式 Agata

          写信给 Agata





            阅读 Legalmondo 的隐私政策
            This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

            Commercial distribution contracts – Six key questions to consider

            2017年11月30日

            • 西班牙
            • 机构
            • 契约
            • 分销协议
            • 国际贸易

            This week the Interim Injunction Judge of the Netherlands Commercial Court ruled in summary proceedings, following a video hearing, in a case on a EUR 169 million transaction where the plaintiff argued that the final transaction had been concluded and the defendant should proceed with the deal.

            This in an – intended – transaction where the letter of intent stipulates that a EUR 30 million break fee is due when no final agreement is signed.

            In addition to ruling on this question of construction of an agreement under Dutch law, the judge also had to rule on the break fee if no agreement was concluded and whether it should be amended or reduced because of the current Coronavirus / Covid-19 crisis.

            English Language proceedings in a Dutch state court, the Netherlands Commercial Court (NCC)

            The case is not just interesting because of the way contract formation is construed under Dutch law and application of concepts of force majeure, unforeseen circumstances and amendment of agreements under the concepts of reasonableness and fairness as well as mitigation of contractual penalties, but also interesting because it was ruled on by a judge of the English language chamber of the Netherlands Commercial Court (NCC).

            This new (2019) Dutch state court offers a relatively fast and cost-effective alternative for international commercial litigation, and in particular arbitration, in a neutral jurisdiction with professional judges selected for both their experience in international disputes and their command of English.

            The dispute regarding the construction of an M&A agreement under Dutch law in an international setting

            The facts are straightforward. Parties (located in New York, USA and the Netherlands) dispute whether final agreement on the EUR 169 million transaction has been reached but do agree a break fee of €30 million in case of non-signature of the final agreement was agreed. However, in addition to claiming there is no final agreement, the defendant also argues that the break fee – due when there is no final agreement – should be reduced or changed due to the coronavirus crisis.

            As to contract formation it must be noted that Dutch law allows broad leeway on how to communicate what may or may not be an offer or acceptance. The standard is what a reasonable person in the same circumstances would have understood their communications to mean.  Here, the critical fact is that the defendant did not sign the so-called “Transaction Agreement”. The letter of intent’s binary mechanism (either execute and deliver the paperwork for the Transaction Agreement by the agreed date or pay a EUR 30 million fee) may not have been an absolute requirement for contract formation (under Dutch law) but has significant evidentiary weight. In M&A practice – also under Dutch law – with which these parties are thoroughly familiar with, this sets a very high bar for  concluding a contract was agreed other than by explicit written agreement. So, parties may generally comfortably rely on what they have agreed on in writing with the assistance of their advisors.

            The communications relied on by claimant in this case did not clear the very high bar to assume that despite the mechanism of the letter of intent and the lack of a signed Transaction Agreement there still was a binding agreement. In particular attributing the other party’s advisers’ statements and/or conduct to the contracting party they represent did not work for the claimant in this case as per the verdict nothing suggested that the advisers would be handling everything, including entering into the agreement.

            Court order for actual performance of a – deemed – agreement on an M&A deal?

            The Interim Injunction Judge finds that there is not a sufficient likelihood of success on the merits so as to justify an interim measure ordering the defendant to actually perform its obligations under the disputed Transaction Agreement (payment of EUR 169 million and take the claimant’s 50% stake in an equestrian show-jumping business).

            Enforcement of the break fee despite “Coronavirus”?

            Failing the conclusion of an agreement, there was still another question to answer as the letter of intent mechanism re the break fee as such was not disputed. Should the Court enforce the full EUR 30 million fee in the current COVID-19 circumstances? Or should the fee’s effects be modified, mitigated or reduced in some way, or  the fee agreement should even be dissolved?

            Unforeseen circumstances, reasonableness and fairness

            The Interim Injunction Judge rules that the coronavirus crisis may be an unforeseen circumstance, but it is not of such a nature that, according to standards of reasonableness and fairness, the plaintiff cannot expect the break fee obligation to remain unchanged. The purpose of the break fee is to encourage parties to enter into the transaction and attribute / share risks between them. As such the fee limits the exposure of the parties. Payment of the fee is a quick way out of the obligation to pay the purchase price of EUR 169 million and the risks of keeping the target company financially afloat. If financially the coronavirus crisis turns out less disastrous than expected, the fee of EUR 30 million may seem high, but that is what the parties already considered reasonable when they waived their right to invoke the unreasonableness of the fee. The claim for payment of the EUR 30 million break fee is therefore upheld by the Interim Injunction Judge.

            Applicable law and the actual practice of it by the courts

            The relevant three articles are in this case articles 6:94, 6:248 and 6:258 of the Dutch Civil Code. They relate to the mitigation of contractual penalties, unforeseen circumstances and amendment of the agreement under the tenets of reasonableness and fairness. Under Dutch law the courts must with all three exercise caution. Contracts must generally be enforced as agreed. The parties’ autonomy is deemed paramount and the courts’ attitude is deferential. All three articles use language stating, essentially, that interference by the courts in the contract’s operation is allowed only to avoid an “unacceptable” impact, as assessed under standards of reasonableness and fairness.

            There is at this moment of course no well- established case law on COVID-19. However, commentators have provided guidance that is very helpful to think through the issues. Recently a “share the pain” approach has been advocated by a renowned law Professor, Tjittes, who focuses on preserving the parties’ contractual equilibrium in the current circumstances. This is, in the Court’s analysis, the right way to look at the agreement here. There is no evidence in the record suggesting that the parties contemplated or discussed the full and exceptional impact of the COVID-19 crisis. The crisis may or may not be unprovided for.  However, the court rules in the current case there is no need to rule on this issue. Even if the crisis is unprovided for, there is no support in the record for the proposition that the crisis makes it unacceptable for the claimant to demand strict performance by the defendant. The reasons are straightforward.

            The break fee allocates risk and expresses commitment and caps exposure. The harm to the business may be substantial and structural, or it may be short-term and minimal. Either way, the best “share the pain” solution, to preserve the contractual equilibrium in the agreement, is for the defendant to pay the fee as written in the letter of intent. This allocates a defined risk to one party, and actual or potential risks to the other party. Reducing the break fee in any business downturn, the fee’s express purpose – comfort and confidence to get the deal done – would not be accomplished and be derived in precisely the circumstances in which it should be robust. As a result, the Court therefore orders to pay the full EUR 30 million fee. So the break fee stipulation works under the circumstances without mitigation because of the Corona outbreak.

            The Netherlands Commercial Court, continued

            As already indicated above, the case is interesting because the verdict has been rendered by a Dutch state court in English and the proceedings where also in English. Not because of a special privilege granted in a specific case but based on an agreement between parties with a proper choice of forum clause for this court. In addition to the benefit to of having an English forum without mandatorily relying on either arbitration or choosing an anglophone court, it also has the benefit of it being a state court with the application of the regular Dutch civil procedure law, which is well known by it’s practitioners and reduces the risk of surprises of a procedural nature.  As it is as such also a “normal” state court, there is the right to appeal and particularly effective under Dutch law access to expedited proceeding as was also the case in the example referred to above. This means a regular procedure with full application of all evidentiary rules may still follow, overturning or confirming this preliminary verdict in summary proceedings.

            Novel technology in proceedings

            Another first or at least a novel application is that all submissions were made in eNCC, a document upload procedure for the NCC. Where the introduction of electronic communication and litigation in the Dutch court system has failed spectacularly, the innovations are now all following in quick order and quite effective. As a consequence of the Coronavirus outbreak several steps have been quickly tried in practice and thereafter formally set up. At present this – finally – includes a secure email-correspondence system between attorneys and the courts.

            And, also by special order of the Court in this present case, given the current COVID-19 restrictions the matter was dealt with at a public videoconference hearing on 22 April 2020 and the case was set for judgment on 29 April 2020 and published on 30 April 2020.

            Even though it is a novel application, it is highly likely that similar arrangements will continue even after expiry of current emergency measures. In several Dutch courts videoconference hearings are applied on a voluntary basis and is expected that the arrangements will be formalized.

            Eligibility of cases for the Netherlands Commercial Court

            Of more general interest are the requirements for matters that may be submitted to NCC:

            • the Amsterdam District Court or Amsterdam Court of Appeal has jurisdiction
            • the parties have expressly agreed in writing that proceedings will be in English before the NCC (the ‘NCC agreement’)
            • the action is a civil or commercial matter within the parties’ autonomy
            • the matter concerns an international dispute.

            The NCC agreement can be recorded in a clause, either before or after the dispute arises. The Court even recommends specific wording:

            “All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”).”

            The phrase “to the exclusion of the jurisdiction of any other courts” is included in light of the Hague Convention on Choice of Court Agreements. It is not mandatory to include it of course and parties may decide not to exclude the jurisdiction of other courts or make other arrangements they consider appropriate. The only requirement being that such arrangements comply with the rules of jurisdiction and contract. Please note that choice of court agreements are exclusive unless the parties have “expressly provided” or “agreed” otherwise (as per the Hague Convention and Recast Brussels I Regulation).

            Parties in a pending case before another Dutch court or chamber may request that their case be referred to NCC District Court or NCC Court of Appeal. One of the requirements is to agree on a clause that takes the case to the NCC and makes English the language of the proceedings. The NCC recommends using this language:

            We hereby agree that all disputes in connection with the case [name parties], which is currently pending at the *** District Court (case number ***), will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or ”NCC District Court). Any action for interim measures, including protective measures, available under Dutch law will be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCC Court of Appeal”).

            To request a referral, a motion must be made before the other chamber or court where the action is pending, stating the request and contesting jurisdiction (if the case is not in Amsterdam) on the basis of a choice-of-court agreement (see before).

            Additional arrangements in the proceedings before the Netherlands Commercial Court

            Before or during the proceedings, parties can also agree special arrangements in a customized NCC clause or in another appropriate manner. Such arrangements may include matters such as the following:

            • the law applicable to the substantive dispute
            • the appointment of a court reporter for preparing records of hearings and the costs of preparing those records
            • an agreement on evidence that departs from the general rules
            • the disclosure of confidential documents
            • the submission of a written witness statement prior to the witness examination
            • the manner of taking witness testimony
            • the costs of the proceedings.

            Visiting lawyers and typical course of the procedure

            All acts of process are in principle carried out by a member of the Dutch Bar. Member of the Bar in an EU or EEA Member State or Switzerland may work in accordance with Article 16e of the Advocates Act (in conjunction with a member of the Dutch Bar). Other visiting lawyers may be allowed to speak at any hearing.

            The proceedings will typically follow the below steps:

            • Submitting the initiating document by the plaintiff (summons or request as per Dutch law)
            • Assigned to three judges and a senior law clerk.
            • The defendant submits its defence statement.
            • Case management conference or motion hearing (e.g. also in respect of preliminary issues such as competence, applicable law etc.) where parties may present their arguments.
            • Judgment on motions: the court rules on the motions. Testimony, expert appointment, either at this stage or earlier or later.
            • The court may allow the parties to submit further written statements.
            • Hearing: the court interviews the parties and allows them to present their arguments. The court may enquire whether the dispute could be resolved amicably and, where appropriate, assist the parties in a settlement process. If appropriate, the court may discuss with the parties whether it would be advisable to submit part or all of the dispute to a mediator. At the end of the hearing, the court will discuss with the parties what the next steps should be.
            • Verdict: this may be a final judgment on the claims or an interim judgment ordering one or more parties to produce evidence, allowing the parties to submit written submissions on certain aspects of the case, appointing one or more experts or taking other steps.

            Continuous updates, online resources Netherlands Commercial Court

            As a final note the English language website of the Netherlands Commercial Court provides ample information on procedure and practical issues and is updated with a high frequence. Under current circumstance even at a higher pace. In particular for practitioners it’s recommended to regularly consult the website. https://www.rechtspraak.nl/English/NCC/Pages/default.aspx

            This is a summary of the approved measures, which unfortunately for both tenants and landlords do not include any public aid or tax relief and just refer to a postponement in the payment of the rent.

            Premises to which they are applied

            Leased premises dedicated to activities different than residential: commercial, professional, industrial, cultural, teaching, amusement, healthcare, etc. They also apply to the lease of a whole industry (i.e. hotels, restaurants, bars, etc., which are the most usual type of businesses object of this deal).

            Types of tenants

            • Individual entrepreneurs or self-employed persons who were registered before Social Security before the declaration of the state of alarm on March 14th, 2020
            • Small and medium companies, as defined by article 257.1 of the Capital Companies Act: those who fulfil during two consecutive fiscal years these figures: assets under € 4 million, turnover under € 8 million and average staff under 50 people

            Types of landlords

            In order to benefit from these measures, the landlord should be a housing public entity or company or a big owner, considering as such the individuals or companies who own more than 10 urban properties (excluding parking places and storage rooms) or a built surface over 1.500 sqm.

            Measures approved

            The payment of the rent is postponed without interest meanwhile the state of alarm is in force, but in any case, for a maximum period of four months. Once the state of alarm is overcome, and in any case in a maximum term of four months, the postponed rents should be paid along a maximum period of two years, or the duration of the lease agreement, should it be less than two years.

            For landlords different to those mentioned above

            The tenant could apply before the landlord for the postponement in the payment of the rent (but the landlord is not obliged to accept it), and the parties can use the guarantee that the tenant should mandatorily have provided at the beginning of any lease agreement (usually equal to two month’s rent, but could be more if agreed by the parties), in full or in part, in order to use it to pay the rent. The tenant will have to provide again the guarantee within one year’s term, or less should the lease agreement have a shorter duration.

            Activities to which it is applied

            Activities which have been suspended according to the Royal Decree that declared the state of alarm, dated march, 14ht, 2020, or according to the orders issued by the authorities delegated by such Royal Decree. This should be proved through a certificated issued by the tax authorities.

            If the activity has not been directly suspended by the Royal Decree, the turnover during the month prior to the postponement should be less than 75% of the average monthly turnover during the same quarter last year. This should be proved through a responsible declaration by the tenant, and the landlord is authorised check the bookkeeping records.

            Term to apply and procedure

            The tenant should apply for these measures before the landlord within one month’s term from the publication of the Royal Decree-law, that is, from April 22nd, 2020, and the landlord (in case belongs to the groups mentioned in point c) is obliged to accept the tenant’s request, except if both parties have already agreed something different. The postponement would be applied to the following month.

            As the state of alarm was declared more than one month ago (March 14th), landlords and tenants have already been reaching some agreements, for example 50% rent reduction during the state of alarm, and 50% rent postponement during the following 6 months. Tenants who do not reach an agreement with the landlord could face an eviction procedure, however court procedures are suspended during the state of alarm. We have also seen some abusive non-payment of rent by tenants.

            When is becomes impossible to reach an agreement with the landlord, tenants have the legal remedy of claiming in Court for the application of the “rebus sic stantibus” principle, which was highly demanded during the 2008 financial crisis but very seldom applied by the Courts. This principle is aimed to re-balance the parties’ obligations when their situation had deeply changed because of unforeseen circumstances beyond their control. This principle is not included in the Spanish Civil Code, but the Supreme Court has accepted its application, in a very restricted way, in some occasions.

            Summary – What can we learn in the time of Covid-19 that can be used in mediation? And what can we learn from mediation to be used in this crisis?

            As you know, mediation is a way to solve conflicts in which the parties keep in their hands the possible solution. They do not need to come to a third party (judge or arbitrator) to impose the answer to them. Parties can imagine more freely what they need, and how to solve their differences.

            Some of the elements and techniques mediators use in a mediation can also be used in and learnt from the current Time of Covid-19. And the current crisis also helps us to understand why they are so important in mediation.

            Cooperation to get the solution is better than unilateral and imposed decisions

            We usually tend to think that cooperation is a sign of weakness and that we recur to it only if we cannot impose or view or win our case. However, as in the time of Covid-19 where countries, scientists and people should fight together, when facing a conflict cooperation and going beyond your positions brings you the possibility to explore solutions that otherwise remain hidden.

            « Now it is increasingly recognized that there are cooperative ways of negotiating our differences and that even if a “win-win” solution cannot be found, a wise agreement can still often be reached that is better for both sides than the alternative. […]

            Three points about shared interests are worth remembering. First, shared interests lie latent in every negotiation. They may not be immediately obvious. Second, shared interests are opportunities, not godsends. Third, stressing your shared interests can make the negotiation smoother and more amicable. » [Fisher, Richard; Ury, William. “Getting to Yes: Negotiating an agreement without giving in”].

            Listening is highly effective

            In the time of Covid-19 we tend to accept better information that confirms our beliefs and we accept better indications that are in accordance with our preferences and beliefs. Nevertheless, also in this time, listening is of essential importance to understand the causes and solutions.

            A mediator will always listen to the parties and will help them to do the same. Listening the other’s side arguments, its explanation of the facts, interests and needs, the reasons for its decisions… is also of utmost importance to find a joint solution.

            «Whether you are a neutral third party (professional facilitator, friend, or manager) or one of the participants, as you listen to all the stories, you begin to sense the best solution. » [Levine, Stewart. “Getting to Resolution: Turning Conflict Into Collaboration.”]

            A solution for me can also be a solution for you

            In the time of Covid-19 it seems clear to all of us that a common solution is the only possible one. A vaccine will save the entire world. In mediation, the main benefit is to understand that, unlike a court judgement or arbitral award, a joint (not imposed) solution is possible and a benefit for me does not imply a damage or a lost for my opponent.

            «A mediator works to understand each disputant’s perspective and to look for the value in it. In this role, you refrain from judging whose side is right or wrong. Instead, you try to see the merit in each side’s perspective. » [Shapiro, Daniel. “Building Agreement”].

            We master the solution and we create the agreement in a safe environment

            The solution to the current crisis does not only depend on the authorities and on the health professionals. A great part of the solution relies on everybody’s participation, washing our hands, respecting the social distance, staying safe at home avoiding contagion and the collapse of hospitals.

            In court we leave the decision of the conflict in the hands of a third party –the judge, the arbitrator­–. In a mediation, on the contrary, the solution remains in our hands. We know what our interests are, we create our agreement. Our imagination is our ally in finding the solution together with the counterparty and the assistance and experience of the mediator who does not impose it but helps the parties to find it. Quite often, what parties could get in mediation goes far beyond what a judge would’ve been able to grant. And this in a confidential environment.

            «The Sage is self-effacing and scanty of words. When his task is accomplished and things have been completed, all the people say, “We ourselves have achieved it!” » [Lao Tzu]

            Emotions do matter

            Good and bad emotions are inevitable. Particularly in periods of uncertainty, crisis and loose of control, we all face strong emotions. This is true in situations like this Covid-19 and in all conflicts, and not only in personal ones. Egos, envies, fears, anxieties… are also part of our day-to-day life, work and business, but they are rarely considered in courts when solving your conflicts. A mediator helps you to take them into account in a safe environment and as a part of the conflict itself.

            «Solving problems seems easier than talking about emotions. The problem is that when feelings are at the heart of what’s going on, they are the business at hand and ignoring them is nearly impossible. » [Stone, Douglas. “Difficult Conversations: How to Discuss What Matters Most”].

            Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19, even though it affects and produces effects in many different legal fields, does not include any reference to contracts for leases of real estate, or houses, premises or offices.

            The purpose of this note is to analyze the effects of the situation of the State of Alarm regarding those leases of offices or premises that have been forced to close in application of the decree; those others that remain totally or partially open and in operation, although with a reduced or minimal activity, in principle are not subject to the conclusions reached below without prejudice to the fact that there are individualized cases to which, despite the fact that there is not a complete closure, reasonably and logically can be applied to them.

            It is not excluded in any way that in the event of an extension of the validity of the State of Alarm, a regulation that affects the leasing contracts could be published, but for the moment this has not happened. If this were to happen, the content of said norm would apply.

            Based on the principle of freedom of covenants enshrined in art. 1255 of the Spanish Civil Code, which allows the parties signing the contract to agree (i) what scenarios and situations should be considered as constituting cases of Force Majeure and Act of God and (ii) what the contractual consequences of such scenarios should be, the first exercise that must be done is to check if the contract includes a regulatory clause of Force Majeure and its effects; if so, such clause must be followed and its analysis is left out of this note.

            In the absence of express regulation in the contract, the provisions of the Civil Code and specifically article 1105 would apply.

            COVID-19 as Force Majeure

            COVID-19 is an event that in principle meets the requirements of the Civil Code to be classified as an event of Force Majeure (art. 1105 Civil Code) since:

            • It is a foreign act and not attributable to the contractor who is the debtor of the benefit or obligation.
            • It is unpredictable, or if it were said to be “predictable”, it is certainly inevitable.
            • The event in question, the pandemic, must be a cause and result in the breach of the obligation, that is, there must be a causal link.

            Therefore, fulfilling the three requirements, the first conclusion that we reach is that very foreseeably, the Spanish Courts will classify as “Force Majeure” the situation caused by COVID 19 when a judicial dispute is raised in which such matter is discussed between litigants. We will now analyze the consequences of this status.

            Consequences of considering COVID-19 as an event of Force Majeure

            Most of the doctrine and jurisprudence understand that the effects of classifying a scenario as a case of Force Majeure in principle are:

            • Total and definitive impossibility of complying; releasing the debtor from the fulfillment of the obligation.
            • Partial inability to comply; the debtor is released only in the part that it is impossible to fulfill, but still bound by the part that can be carried out.
            • Temporary inability to comply; the debtor is released from the responsibility for default as long as the exceptional situation persists.

            Now, let us analyze how it would affect to considerate the epidemic as Force Majeure in relation to lease agreements for uses other than housing.

            Regarding the payment of rent

            The question to answer is if the classification of the current pandemic situation as a case of Force Majeure frees the tenant (whose premises have been forced to close by order of the government authority) from the obligation to pay the rent while said closing obligation persists, including in the concept of “release” different alternatives: total or partial cancellation and / or total or partial postponement.

            We are meeting these days with a frequent reaction among some tenants, who, unilaterally have informed their landlords that considering COVID 19 an event of force majeure and having been forced to close the premises / office, they suspend the payment of the rent while said situation remains. They do not terminate the contract, they do not hand over the possession, they remain in it (the premises remain closed and not operational) but they suspend the payment (it is not clear whether suspending in this case means liberating himself from the payment of the rent or postponing its payment for when the Force Majeure scenario ends).

            Arguments against liberation

            As much as this attitude can be considered “understandable” from the perspective of the lessee, not from the point of view of the lessor, said consideration runs into an obstacle: the interpretation of the Force Majeure made by the Supreme Court regarding pecuniary payment obligations, according to the Civil Sentence of May 19, 2015:

            “Not being able to consider, in the case of pecuniary debts, the subjective impossibility – insolvency – nor the objective or formal imposition, the doctrine concludes that it is not possible to imagine that if the impossibility is due to a fortuitous event it could have as effect the extinction of the obligation.

            The exoneration of the debtor by fortuitous event is not absolute, it has exceptions, as provided for in article 1105 CC, and one of them, by application of the “genus nunquam perit” principle, would be in cases of obligations to deliver generic things.

            In such circumstances, the pecuniary debtor is obliged to fulfill the main obligation, without the economic adversities freeing him from it, since what is owed is not something individualized that has perished, but something generic such as money”.

            In conclusion: it does not seem that this jurisprudential criterion allows to defend that the fulfillment of the pecuniary obligations is released, extinguished or that its breach is justified in cases of Force Majeure, therefore the pecuniary debtor, in this case the lessee, in application of this criterion and due to the generic condition of the money, would be obliged to fulfill his main obligation not being freed from it by the unforeseen economic adversities on the basis of Force Majeure.

            Arguments in favor of liberation: art. 1575 of the Civil Code

            Having said the foregoing, reference should be made to an article of the Civil Code that, with certainty, will be profusely cited in the upcoming judicial conflicts.

            The art. 1575, dealing with the leasing of rustic estates, recognizes the lessee’s right to the reduction of rent in the event of loss of more than half of the fruits (unless otherwise agreed) in “fortuitous, extraordinary and unforeseen cases … such as fire, war, plague, unusual flood, locust, earthquake or another equally unusual that the contractors have not been able to rationally foresee ”.

            Is this article, foreseen for rustic leases, applicable to urban leases?

            The art. 4.1 CC allows the analogical application of the rules when (i) they do not contemplate a specific assumption and (ii) they regulate a similar situation in which “identity of reason” may be appreciated.

            The Sentence of the Supreme Court from January 15, 2019, that solved a conflict of a lease of a building used as hotel, in which the tenant had sought the reduction of the rent under the clause “rebus sic stantibus” by the crisis of 2008 and had alleged in his favor the application of art. 1575, established:

            “The argumentation of the appealed judgment rejecting the claim to lower the agreed price is also not contrary to the legal criterion that follows from art. 1575 CC, which is the rule that allows the reduction of income in the leasing of productive assets that do not derive from risks of the business itself, it also requires that the loss of benefits originates from extraordinary and unforeseen fortuitous cases, something that by its own rarity could not have been foreseen by the parties, and that the loss of fruits is more than half of the fruits. In this particular case, none of these circumstances concur. The decrease in rents comes from market developments, the parties anticipated the possibility that in some years the profitability of the hotel would not be positive for the lessee and the losses alleged by NH in the operation of the Almería hotel are less than fifty per hundred, without taking into account that the overall result of his activity as manager of a hotel chain is, as the Audience considers proven in view of the consolidated management report, positive”.

            The Supreme Court does not admit the application of art. 1575, but not because it is considered not applicable to non-rustic leases, but because the Court concludes that the requirements are not fulfilled since the 2008 crisis was neither unpredictable and because the lessee’s losses do not exceed 50%.

            But, that interpretation of the Supreme Court together with the wording of art. 4.1 CC would support the claim of the lessee who has no incomes during the State of Alarm to demand a reduction in rental fee that fits the principle of proportionality.

            Regarding early termination at the request of the lessee

            However, we may find situations in which the lessee considering the current situation, decides to terminate the lease in advance, delivering the premises to the lessor.

            They are cases in which the early termination of the contract is intended, without respecting (i) or the mandatory term (ii) or the previous notice, in both cases under the hypothesis that they are thus regulated in the contract.

            In these scenarios, we understand that it may be defendable that, due to the situation of force majeure caused by COVID 19 and in application of art. 1105 of the CC, the lessee is exempt from the obligation:

            1. To respect the mandatory term of the lease
            2. To give prior notice to the lessor in case of early termination of the contract

            In both cases, the contract would be terminated with the delivery of possession of the premises, without prejudice to having to respect the other obligations set forth in the contract for termination and delivery, provided that they are not equally affected by the situation of Force Majeure.

            Our opinion is that, also in application of Article 1,105 of the CC, the thesis that the lessee would be released from any obligation to compensate damages to the lessor for said advance resolution or breach of the obligatory duration of the contract could be defendable before the Courts.

            Conclusion

            In conclusion, when the Courts decide on the effects of the current pandemic (that they will surely classify as Force Majeure), and how this will affect the obligations of leaseholders who have been forced to close their business, our opinion is the following:

            • Regarding the obligation to pay the rent, despite the contrary criterion of the sentence from May 19, 2015, we find defendable the analogue application of art. 1575 of the CC, based as well on the Supreme Court Sentence from January 15, 2019, in order to demand a proportional and equitable reduction of the rent.
            • Regarding the power of the leaseholder to terminate the contract in advance, in case the leaseholder hands the possession of the property to the lessor, we find defendable to exonerate the leaseholder from complying with the advance notice or mandatory term in case provided in the contract, without the obligation to indemnify the lessor for this reason.

            Application of the Rebus Sic Stantibus clause (“RSS” clause)

            We will analyze below if the RSS clause can be applicable to the case that we are studying and with which consequences.

            Requirements of the RSS clause (Latin aphorism that means “things thus standing”)

            The principle RSS operates as an intrinsic clause (that is, implicit, without the need to expressly agree by the parties) in the contractual relationship, which means that the stipulations established in a contract are so in view of the concurrent circumstances at the time, that is, “things thus standing”, so that any substantial and unforeseen alteration of the same could lead to the modification of the contractual content.

            The RSS clause is not regulated in any article in our laws; It is a doctrinal construction that the jurisprudence has traditionally admitted (examples among many other Supreme Court Sentences from June 30, 2014, February 24, 2015, January 15, 2019, July 18, 2019), with great caution, only in certain cases, and requiring the following requirements:

            • That there has been an extraordinary alteration in the circumstances of the contract, at the time that it must be fulfilled, in relation to those present at the time the parties entered the contract.
            • To analyze whether an incident can determine the extraordinary alteration of the circumstances that gave meaning to the contract, we must a) contrast the scope of said alteration regarding the meaning or purpose of the contract and the commutativity or performance balance thereof; and b) the “normal risk” inherent or derived from the contract must be excluded.
            • That there has been an exorbitant disproportion, out of all calculation, between the obligations of the contracting parties, causing an imbalance between them.
            • That the above occurs because of radically unpredictable circumstances.
            • That there is no other remedy to overcome the situation.

            Historically, our courts have been very reluctant to apply RSS, although since the economic crisis of 2008-2012 there has been a certain change in criteria and greater jurisprudential receptivity.

            Consequences of the application of RSS

            The doctrine establishes that the application of the RSS does not have in principle terminating effects on the contract, but only modifying effects, aimed at compensating the imbalance of obligations between the parties;  the doctrine establishes that this only applies to long-term contracts or successive contracts with deferred execution.

            In application of the good faith principle, the reaction to an event of fortuitous event, force majeure or, in general, an event that generates a disproportion between the parties, such as that regulated by the RSS clause, should be the amendment of the contract to rebalance the obligations between the parties, and only in the event of material impossibility to comply with the obligations, the resolution of the obligation, in both cases without compensation for non-compliance.

            For this reason, in relation to leasing contracts and in case of closure of the premises by mandatory mandate, we understand that the RSS clause may be:

            • alleged by the leaseholder to request or urge the lessor to downsize or postpone payment.
            • estimated by the judges, when these assumptions are debated before the Courts, when accepting such contractual amendment as equitable and legitimate in order to compensate the imbalance generated by the effects of COVID 19.

            To summarize, the RSS clause can be a tool for the leaseholder that has had to close its premises during the State of Alarm, when negotiating with the lessor an amendment of the contract, trying to postpone the rent while the State of Alarm or negotiating a discount.

            We should bear in mind:

            • That the RSS clause is unavoidably applicable on a casuistic basis, there are no generalizations and it will be necessary to take into account the effect caused by COVID 19 in each specific contractual relationship (Supreme Court Sentence from June 30, 2014 and February 24, 2015) and the real imbalance of benefits produced, and
            • That, as we have said, the Courts are generally reluctant to apply this clause, that they only apply in the absence of any other legal tool and in situations in which the maintenance of the contractual status quo reveals a manifest “injustice ”and a evident and resounding imbalance between the performance of the parties.

            Does this mean that the leaseholder may impose on the lessor a modification of the economic conditions of the contract under the RSS clause (postponement or total or partial cancellation of the payment)?

            We cannot assure this, what we think is that the application of this RSS clause should:

            • Justify a reasonable request from the leaseholder to temporarily change the conditions of the contract (postponement or cancellation, total or partially) that the lessor must reasonably meet.
            • In case of unreasonable refusal of the lessor, we recommend to document as much as possible leaseholder´s request and the possible negotiations or refusal, in order to substantiate a suspension of the payment of the rent, total or partial, during the State of Alarm aimed, not to extinguish his obligation, but to postpone it.

            We will have to wait for the reaction of the Courts when they judge these conflicts, but if we dare to anticipate that it is quite possible that the judicial tendency will be to grant protection to the leaseholder with support in the RSS clause and the principle of business preservation, when it comes to validating certain modifying effects regarding the payment obligations of the leaseholder (total or partial remission of the rent payment during the pandemic crisis, postponement, or partial postponement).

            In any case, it will be essential to prove, that the behavior of the leaseholder seeking protection in the RSS clause to amend the contract, has been strictly adjusted to the principle of good faith (Supreme Court Sentence from April 30, 2015).

            It will also be important to analyze case by case why the displacement of the risk derived from the “exceptional and unforeseen event” from one contractor to the other is justified (Supreme Court Sentence from January 15, 2015) and could well be defended (Supreme Court Sentence from July 18, 2019) that both contracting parties must divide and assume the consequences between the two of them. The judicial decisions will vary in each specific case.

            Conclusions and Recommendations

            In conclusion, it seems that the leaseholder would have two instruments in order to try to successfully suspend or postpone the payment of the rents, the RSS clause and the principle of Force Majeure.

            In our view, the replacement of the contractual balance altered by the exceptional event, may consist of either an extension of the lease payment terms or the application of a total, or partial cancellation of the rental payment obligation while it lasts the State of Alarm, but we understand that it will be defendable that the delay in the payment may not give rise neither to the termination of the contract under art. 1124 Cc nor to the requirement of damages art. 1105 Cc, therefore, will not empower the lessor to urge eviction.

            Therefore, the steps to be followed in each case would be:

            • Carry out an examination of the contract to check whether force majeure and acts of God are regulated and if the current situation is in accordance with the contract provisions.
            • Should nothing be set forth at the contract, and in case the leaseholder has had to close the premises or office, notify the other party of this circumstance and try to negotiate a novation of the lease requesting:
              • Waiver of the payment obligation during the Alarm State.
              • The application of a discount on the payment obligations with both parties sharing the effects of the pandemic, in a proportion to be agreed.
              • Postponement of payment obligations until the premises or office can be reopened with a payment plan for the deferred debt.

            If it is not possible to reach an agreement, it is advisable to try to maintain evidence that the parties have acted in good faith trying to reach a negotiated solution and at the extreme (from the leaseholder´s point of view) announce, without waiting to receive a communication or claim from the Lessor, the suspension of the rental fee payment until reopening of the premises/offices, justifying the same in the Alarm State.

            《法国商业法》规定，贸易商在未给予充分书面通知的情况下终止书面合同或非正式商业关系(第442-1.1条)将被制裁。在过去的二十年中，这已成为商业关系或合同终止（全部或部分终止）时所有补偿行为（最高可达24个月的毛利率以及其他损害赔偿）的经常性法律依据。

            因此，与法国公司签约的外国贸易商应尽量避开该规则的管辖范围 (第一部分)，如果不能，则应理解并控制其实施 (第二部分)。

            简而言之

            外国公司如何避免或控制与法国法律规定的“突然终止商业关系”有关的风险？

            与法国公司做生意的外国公司应该这样做：

            • 与法国供应商或客户尽快达成书面（框架）协议，即使是非常简单的关系也是如此；
            • 规定一项有利于外国法院或仲裁以及外国适用法律的条款，而如果不能选择该条款，则只能服从法国法院和法律。

            外国公司如何才能掌控法国法律规定的“突然终止商业关系”的风险?

            与法国公司做生意的外国公司应该这样做：

            • 要知道，本条适用于几乎所有类型的商业关系或合同，无论是书面的还是非书面的，无论是定期的还是非定期的;
            • 检查其关系/合同是否期限足够且正常和重要，以及对方是否有合理理由相信该关系/合同会继续维持；
            • 给出终止或不续约（甚至是重大修改）的书面通知，其期限主要考虑到关系的持续时间，与合同通知的时限无关；
            • 谨慎地劝告当事方在遭遇不可抗力和严重过失的情况下，搁置“突然终止”；
            • 如果没有充分的通知，则预计赔偿金额为为每月平均毛利率与未获批准的事先通知的期限之积。

            如何避免适用法国的“突然终止”规则?

            在国际事务中，外国公司必须预见其关系是否将受到法国法律的管辖，并且在发生争议的情况下，是否将其关系提交到法国法院。

            “突然终止合同”的法律适用范围是什么?

            对于一个外国公司来说，要正确地掌握适用于“突然终止”的法国法律冲突法规则框架是相当困难的。巴黎上诉法院在2018年9月19日的裁决（RG 16/05579，DES / 娇韵诗）中隐含提及Granarolo欧盟裁决（07 14 16，N°C196 / 15），该裁决将合同资格扩展至大多数业务关系，以改善可预见性，来应对外国公司试图排除法国法律及其“突然终止”规则的行为。

            突然终止书面合同或“默认合同关系”

            根据关于合同适用法律的罗马一号法规 (EC No 593 / 2008，2008年6月17日)：

            • 如果当事各方选择了外国法律：选择外国适用法律的条款将是有效的，并将受到法国法官的尊重 (服从OMR，请参阅下文)，前提是当事各方选择的法律是明示或确定的。
            • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为它可能也是分销商/加盟商所在国的法律等，或是提供合同服务功能的当事方所在国家/地区的法律。

            突然终止“非默认合同关系”

            如果是非正式关系 (即偶尔下达订单)，法国法官将保留侵权行为资格，并将参考适用于非合同义务法律的《罗马二号条例》(第864/2007号，2007年7月11日)。

            • 如果当事各方选择了外国法律：法国法官应执行草拟的外国法选择条款，条件是该条款明确包含侵权案件。
            • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为这可能是损害发生的国家/地区的法律（无论是发生事件的地点还是造成间接后果的地点），是法国受害者遭受终止结果的总部所在地。

            “突然终止合同”是法国的一项压倒一切的强制性规定吗?

            法国法院的立场相当模糊且令人不满。 简而言之：巴黎商事法庭认为“突然终止”不是OMR，巴黎上诉法院（负责“突然终止”案件的唯一法国上诉法院）却支持OMR资格，而最高法院……对此事保持沉默。尽管罗马一号条例（或罗马二号）第9.1条缺乏严格的推理和理由，但很明显，巴黎上诉法院有司法意愿将“突然终止”归为OMR。 因此，如果向法国法院提出“突然终止”的要求，则该法国法院极有可能排除适用的外国法律，而将其替换为产生于第L 442-1. II条“突然终止”。

            因此，外国公司确保“突然终止”不会妨碍合同的终止或停止续签的唯一可能性，不仅是选择一项适用的外国法律，而且是确保将争端提交外国法官或仲裁庭。

            如何避免法国法院对“突然终止”索赔的管辖权?

            “突然终止”索赔和欧盟内部共同承包商

            欧洲法院的裁决(Granarolo, 2016年7月14日，NC196/15)区分了以下索赔:

            • 书面框架合同或默认合同关系 (仅当欧洲法院所列出的证据由国家法官确定时才存在，即相互承认的关系和承诺的限期，如排他性、特价或交货与付款条件、竞业禁止等)：根据布鲁塞尔一号重铸条例下的管辖权冲突规则，此类索赔具有合同性质；
            • 非正式关系——一种非默认的合同关系 (即不时下达的命令)：在布鲁塞尔一号重铸条例下这样的请求具有侵权性质。

            （a）谁是“突然终止”书面合约或“默契合约关系”的法官?

            • 为了外国法院的利益，管辖权条款将由法国法院执行，即使它是一个不对称的条款 (最高法院，2015年10月7日，Ebizcuss.com / 苹果销售国际)。
            • 在缺乏法院条款选择的情况下，如果以“突然终止”为基础提起诉讼的法国索赔人是服务提供者，例如分销商，代理人等，则法国法院可能具有管辖权 (请参阅欧洲法院 Corman Collins案， 19 12 13，C-9 / 12和布鲁塞尔一号重铸条例第7.1.b.2条)。

            （b）谁是“非默认合同关系”“突然终止”的法官？

            • 我们认为，法国法院可能会继续执行侵权案件中的管辖权条款，特别是明确包含侵权诉讼的条款 (最高法院，1°Ch.Civ.，2017年1月18日，n°15-26105，里维埃拉汽车/阿斯顿马丁拉贡达有限公司)。
            • 在缺乏法院条款选择权的情况下，法国法院将对“突然终止”索赔具有管辖权，所以由位于发生损害事件地点的法官（布鲁塞尔一号第7.3条）负责，而该地点是“突然终止”生效的地方……即如果法国公司是受害者，该地点就在法国。

            “突然终止”索赔和非欧盟共同承包商

            如果一名法国受害者基于非欧盟公司的“突然终止”向法国法院提出索赔，Granarolo解决方案将不在事实上适用。在非欧盟关系中，法国法官只能继续保留侵权资格。在这种情况下，法国法院可以根据损害事件发生的地点保留其管辖权。然而，即使是基于侵权的索赔，在法国也可以承认管辖权条款。

            “突然终止”索赔和仲裁

            制定一项临时条款或机构仲裁条款可能是规避法国法院管辖权的最安全解决方案。理想情况下，该条款将在法国境外确定仲裁庭的席位。根据仲裁员的胜任力原则，法国法院宣布其自身无能力仲裁，除非仲裁条款明显无效或明显不适用，无论合同或侵权理由如何 (特别参见巴黎上诉法院，2019年9月5日，n / 17/03703)。

            结论：外国公司不应公开管辖权和管辖法律问题。他们必须协商出一个安全港湾，否则，被终止的法国受害人将可能有权向法国法官提出“突然终止”的要求（请参阅下面第2部分的内容）

            如何掌握“突然终止”法律的规则?

            在法国法律适用的情况下，外国公司将面临法国商业法典L442 -1.II条对“突然终止”的制裁。 作为一项初步说明，首先必须知道，“突然终止”责任的执行是通知时间太短的结果。 因此，该方案没有制定自动补偿规则。换句话说，一旦终止的发起人发出了合理的通知，基于该通知的责任就可以被免除。

            “突然终止”的先决条件：已建立的商业关系

            所有合同均受该法律制度的约束，法规中规定了特定终止通知的合同除外，例如商业代理合同和公路分包合同的货物运输。

            首先，必须存在一种可以通过书面合同或事实上当事双方的行为所证明的关系。这种关系可以建立在一系列默认续签的合同或由多个订单实现的正常业务流程基础之上。

            第二，这种关系必须具有既定的特征。没有法律定义，但是判例法年复一年地对这一概念进行了界定，判例法已经建立了一个客观标准和一个更主观的标准。

            (a) 客观标准意味着双方之间有足够长期、经常和重要的关系。关系的持续时间是最重要的标准。这种关系必须是有规律的，也就是说，它不能被打断(太频繁或太长时间)。这种关系最终必须是有意义的，并且在数量或价值上代表双方之间的业务流。

            (b) 主观测试主要侧重于受害人在基于事实层面上认为继续的合同/关系（例如投资要求，几年内的预算等）将走向破裂的合理信念。相反，正是基于对共同的未来缺乏合理信念的结果，即当终止方多次提出招标要求时，终止方可以证明其缺乏稳定的品格 (除非这是一个诡计)。

            提前预计“突然终止”索赔

            (a) 终止可以是全部或部分的

            完全破裂是通过关系的完全终止来实现的，例如终止合同、停止买方发送订单或停止供应商记录订单。但是要处理的最复杂的情况是所谓的部分破裂，它是通过对部分影响关系但不会将其减少为零的部分进行修改而得出的 (例如：价格上涨或下跌，付款或交付条件的改变)。

            (b) 终止必须以合理的事先书面通知为准

            通知必须以书面形式通知。没有书面通知本身就是一种违约行为。通知必须清楚地反映一方当事人全部或部分断绝关系的意愿，并且必须清楚地表明这一意愿。双方必须区分正式违约通知函和随后发出的违约通知（如适用）。在通知期间内，双方必须完全遵守所有合同条件。

            在2019年改革之前，法国法律没有明确规定应遵守的事先通知的期限。如果判例法规定了若干标准，则应当指出，最重要的标准是关系的持续时间。法官还考虑到受害人所占的营业额份额、领土排他性的存在与否、产品的性质和活动的范围、受害者进行投资的重要性（特别是对于所涉关系的投资），最后是经济依赖的状态。法官们发出通知的时间长短不一。对通知的评估是逐案进行的。即使是几乎对于一段关系中的一年，也可能需要一个月的通知时间（根据关系中的其他标准进行上下调整），很难给出一个黄金法则。2019年4月24日的法令根据第l442 -1. i条把合理到期的通知期限限制为18个月。但大部分诉讼仍存在不确定性，因为只有特别长寿或特别敏感的关系，才可能导致高于18个月的通知分配时间。

            法官不受合同规定的合同通知书的约束。但是，如果违约方还违反了合同规定的终止条款和条件，则受害人可以在突然终止的侵权基础上，或违反合同义务的基础上，追究违约方的责任。

            排除“突然终止合同”的情况

            法律制度规定了两种情况，而判例法似乎还规定了其他情况。

            (a) 两个法律例外分别是不可抗力（很少被法院神圣化）和遭受终止的受害者的过失，判例法补充说，这必须是对合同承诺或法律规定（如不尊重排他性、竞业禁止、保密或变更控制责任，或未按合同规定支付到期金额）的严重违反。

            当然，法官们认为自己不受界定什么构成严重不当行为的终止条款的约束。在任何情况下，因严重不当行为而终止协议的一方必须在终止协议书中明确通知对方。最重要的是，严重的不当行为会导致通知的缺少，因此，如果终止方指控严重的不当行为，但给予通知，无论是哪种情况下，法官都可能会得出结论，认为该过失不够严重。

            (b)  近年来，判例法增加了其他免责的案例。在这种情况下，破裂是由当事方以外的原因造成的，如经济危机，上游或下游自身客户或供应商的损失。

            无论其期限是什么，法官们还排除了定期合同第一个期限结束的假设中的“突然终止”：合同的首次续签对合同破裂的受害者构成可预见的事件，这就排除了残暴的概念；但一旦合同至少续签了一次，法官随后就可以描述受害者对新的默认续签的合法信念。

            “突然终止”的赔偿

            法官只赔偿暴力行为本身的破坏性后果，但至少在第L442-1.II条的范围内，不赔偿违约行为本身的后果。

            基本规则非常简单：必须确定应授予的通知的期限，从中减去实际授予的通知期限。该净通知时间乘以受害人的平均每月毛利率，或在更通常的情况下，是乘以可变成本的利润，不包括因不履行合同/关系而消失的成本。被告应毫不犹豫地索要完整的会计证据，尤其是确定（较低的）利率，甚至要求就这些会计要素提供司法专业知识。通常，平均每月利润的基数包括最近24或36个月。

            通常，以平均保证金计算的补偿不包括任何其他补偿。但是，受害人可以证明其由于关系破裂的残酷性而遭受了其他损失。例如由于这种野蛮行为直接导致的被解雇或受害者最近进行的投资贬值。

            在预测“突然终止”时的一些实用技巧

            即使法律制度仍然模棱两可，判例法极其苛刻，无法发布强有力的指导方针，但在公司计划终止一段关系/合同时，以下是一些实用建议：

            • 如果定期合同可以默认续签，不续签通知必须在合同通知开始之前提前较长时间发出，以避免出现必须在不续签合同与不充分的通知之间作出选择或同意在新的期限内续签合同的情况;
            • 当商业团队过于激进地改变商业关系/合同的执行条件时，必须让他们意识到部分突然终止的风险；
            • 在某些情况下，发送一份带有“通知建议”的提前终止通知可能有帮助，以便尝试与另一方确认该通知；
            • 在某些关系中，根据产品线的性质，以不同的通知期限来通知关系的结束也是有用的；
            • 最后，最好的方法是缔结关系终止协议，确定通知的期限，并在必要时规定订单的逐步递减，这在和解协议的框架内是完整的，该协议最终将放弃任何索赔 ，包括“突然终止”。

            在进入关系期限的最后阶段时，应考虑“突然终止”制度：必须仔细规划合同（或事实上的关系）终止的方式，以便掌控给对方造成损害和被起诉要求赔偿的风险。

            QUICK SUMMARY: Contract negotiations do not take place in a legal vacuum. A party who negotiates contrary to the principle of good faith and then breaks off negotiations may become liable to the other party. However, the requirements for such liability are high and the enforcement of damage claims is cumbersome. At the end of the post I will share some practical tips for contract negotiations in Switzerland.

            Under Swiss law, the principle of freedom of contract is of fundamental importance. It follows from the freedom of contract that, in principle, everyone is free to enter into contract negotiations and to terminate them again without incurring any liability. A termination of contract negotiations does not have to be justified either.

            However, the freedom of contract is limited by the obligation to act in good faith (cf. article 2 para. 1 of the Swiss Civil Code), which is of equal fundamental importance. From the moment when parties enter into contract negotiations, they are in a special legal relationship with each other. That pre-contractual relationship involves certain reciprocal obligations. In particular, the parties must negotiate in a serious manner and in accordance with their actual intentions.

            Negotiating parties must not stir up the hope of the other party, contrary to their actual intentions, that a contract will actually be concluded. Put differently, a party’s willingness to conclude a contract must not be expressed more strongly than it actually is. If a party realizes that the other party wrongly beliefs that a contract would certainly be concluded, such illusion should be dispelled in due course.

            A negotiating party that terminates contract negotiations in violation of these principles, whether maliciously or negligently, may become liable to the other party based on the culpa in contrahendo doctrine. However, such liability exists in exceptional cases only.

            • The fact that contract negotiations took a long time is not sufficient for incurring such liability. The duration of negotiations is, in itself, not decisive.
            • It is not possible to derive liability from pre-existing contractual relationships between the negotiation parties, as for example in cases where parties negotiate a “mere” prolongation of an existing agreement. The decisive factor is not whether parties were already contractually bound before, but only whether the party that terminated the contract negotiations made the other party believe that a new agreement would certainly be concluded.
            • It is not decisive whether the party who terminates contract negotiations knows that the other party has already made costly investments in view of the prospective contract. In principle, anyone who makes investments already prior to the actual conclusion of a contract does so at its own risk. Even where a party to contract negotiations knows that the other party has already made (substantial) investments in the prospective agreement, a termination of the contract negotiations will, in itself, not be considered as an act of bad faith.

            What does a liability for breaking off negotiations include?

            If a party violates the aforementioned pre-contractual obligations, the other party may be entitled to compensation for the so-called negative interest. This means that the other party must be put in the position it would have been if the negotiations had not taken place. Damages may include, e.g., expenses in connection with the negotiation of the contract (travel costs, legal fees etc.), but also a loss of income in cases where a party was not able to do business with third parties because of the contract negotiations. However, the other party has no right to be treated as if the contract had been concluded (so-called positive interest).

            Having said that, it must be kept in mind that the requirements set by Swiss court for the substantiation of damages are rather high, so that the enforcement of a liability for breaking off negotiations will often be a cumbersome process. Therefore pursuing damage claims with relatively low amounts in dispute might often require a disproportionate effort.

            Practical tips – Do’s and don’ts when negotiating contracts

            • Do not overstate your willingness to conclude a contract. Be frank with your counterparty. Make it clear from the beginning of the negotiations what clauses are important to you.
            • Do not tell the other party that you are willing to sign a contract, if you still have doubts or you are even unwilling to do so. Confirm that you will sign only if you are convinced to do so.
            • Do not allow someone else (e.g., a representative, employee, branch office etc.) to negotiate on your behalf if you are not willing to enter into an agreement anyway. Keep an eye on how the negotiations are going on and intervene if necessary.
            • Do not make costly investments before a legally binding agreement is concluded. If, for time or other reasons, such investments are necessary already before the conclusion of an agreement, insist on the conclusion of an interim contract governing such investments for the event that the envisaged agreement is not concluded finally.

            In 2020, an important revision of the Swiss statute of limitations enters into force. The new law provides for longer limitation periods in cases of personal injury and extends the relative limitation periods in tort and unjust enrichment law from one to three years.

            Background of the revision

            In June 2018, the Swiss parliament adopted an amendment to the Swiss Code of Obligations (“CO”) pertaining to a revision of the statute of limitations. In November 2018, the Swiss government decided that the revised statute of limitations shall enter into force on 1 January 2020.

            The revision was significantly influenced by asbestos cases. Under the current law, damage claims of asbestos victims were time-barred in some cases even before asbestos-related diseases could be diagnosed. In March 2014, the European Court of Human Rights held in Howald Moor and others v. Switzerland that the Swiss statute of limitations amounts in such cases to a violation of article 6 paragraph 1 of the European Convention on Human Rights (right of access to a court).

            Having said that, the revision does not only concern cases of personal injury, but also includes numerous other important changes as described in the following.

            Key changes regarding limitation periods

            A. Tort law

            In tort law, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable (revised Art. 60 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

            With the exception of cases of personal injury, the absolute limitation period remains ten years as from the date when the conduct that caused the damages occurred or ended (revised Art. 60 para. 1 CO).

            In cases of personal injury, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable. Currently the relative limitation period amounts to one year only.

            The new absolute limitation period in cases of personal injury amounts to twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 60 para. 1bis CO). Under the current law, there was no special absolute limitation period for cases of personal injury, so that the ordinary 10-year period applied (Art. 60 para. 1 CO).

            If conduct, which gives rise to liability under tort law, is also punishable under criminal law, the (longer) limitation period under criminal law remains applicable (cf. Art. 97 of the Swiss Criminal Code). However, where a first-instance criminal judgment is rendered before the conduct is time-barred under criminal law, the limitation periods ends not earlier than three years as from that criminal judgment (revised Art. 60 para. 2 CO). The current law does not provide for such an additional three-year limitation period.

            B. Unjust enrichment law

            In unjust enrichment law, the new relative limitation period amounts to three years as from the date on which the injured party knows about the claim (revised Art. 67 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

            The absolute limitation period is not affected by the revision and remains ten years after the date on which the claim arises (revised Art. 67 para. 1 CO).

            C. Contract law

            With regard to contractual claims, the ordinary limitation period remains ten years from the due date (Art. 127 CO). Furthermore, the shorter limitation period of five years from the due date applicable to (amongst others) claims for rent, interest on capital and other periodic payments, (most) claims out of employment relationships etc. remains unchanged too (Art. 128 CO).

            However, in cases of personal injury, the revised statute of limitations introduces a new relative limitation period of three years from the date on which the injured party became aware of the damage, as well as a new absolute limitation period of twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 128a CO). The current law does not provide for distinct relative and absolute limitation periods for contractual claims in cases of personal injury. Instead, the ordinary ten-year limitation period (Art. 127 CO) usually applied to such cases.

            D. Summary

            In summary, the most important elements of the revised statute of limitations are the longer (trebled) relative limitation periods in tort and unjust enrichment law (i.e., three years instead of one year) and the new special rules for cases of personal injury, which now benefit from a 20-year absolute limitation period.

            Transitional provisions / application of the revised statute of limitations to pre-existing claims

            The longer limitation periods under the revised CO apply to any claims that are not yet time-barred when the revision enters into force (i.e., on 1 January 2020; revised Art. 49 para. 1, Final Title of the Swiss Civil Code). In other words, the limitation periods of any claims that do not become time-barred until 31 December 2019 at the latest will be prolonged. This is of particular relevance with regard to claims based on tort and unjust enrichment; the short one-year relative limitation periods under the current law will be extended by another two years.

            In contrast, the current law remains applicable in case the revised statute of limitations provides for shorter limitation periods (revised Art. 49 para. 2, Final Title of the Swiss Civil Code). This concerns, in particular, contractual claims in cases of personal injury. The new three-year relative limitation period under the revised law might not apply to such claims, as the current statute of limitations does not provide for a relative limitation period at all.

            Further changes brought by the revision

            In addition to the changes of the limitation periods set out above, the revision of the statute of limitations contains numerous further modifications. Some of them are listed in the following:

            1. Limitation periods do not commence or are suspended in the event that a claim cannot be asserted for objective reasons before any court worldwide (revised Art. 134 para. 1 no. 6 CO). The current law provides for such non-commencement or suspension only if the claim cannot be brought before a Swiss court.
            2. Parties to a dispute may agree in writing that limitation periods shall be suspended during settlement discussions, mediation proceedings or other out-of-court settlement proceedings (revised Art. 134 para. 1 no. 8 CO).
            3. Once a limitation period has commenced to run, waivers of statute of limitation defenses are admissible, but must not exceed ten years (revised Art. 141 para. 1 CO). Any such waivers must be in writing (new Art. 141 para. 1bis CO).
            4. In general terms and conditions (“GTC”), statute of limitation defenses may be waived by the party who makes use of the GTCs only. In contrast, a waiver by the party on whom the GTCs are imposed (e.g., consumers) is ineffective (new Art. 141 para. 1bis CO).
            5. The limitation period for an actio pauliana under the Swiss Debt Enforcement and Bankruptcy Act (“DEBA”) is extended to from currently two years to three years after service of a loss certificate, the opening of bankruptcy proceedings or the confirmation of a composition agreement with an assignment of assets (whichever is applicable; revised Art. 292 DEBA).

            If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.

            Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.

            In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.

            Europe

            Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.

            Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.

            Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.

            Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.

            Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.

            However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.

            Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?

            If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.

            An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.

            The race to regulating DLT in Europe

            Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.

            EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.

            Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.

            In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.

            France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.

            Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.

            Conclusions

            To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.

            To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.

            The author of this post is Alessandro Mazzi.

            Ignacio Alonso

            业务领域

            • 代理中介
            • 公司法
            • 分销协议
            • 特许经营
            联系方式 Ignacio

            写信给 Ignacio





              阅读 Legalmondo 的隐私政策
              This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

              Germany – Product Placement and Influencer Marketing

              2017年11月28日

              • 德国
              • 契约
              • 传媒
              • 商标和专利

              This week the Interim Injunction Judge of the Netherlands Commercial Court ruled in summary proceedings, following a video hearing, in a case on a EUR 169 million transaction where the plaintiff argued that the final transaction had been concluded and the defendant should proceed with the deal.

              This in an – intended – transaction where the letter of intent stipulates that a EUR 30 million break fee is due when no final agreement is signed.

              In addition to ruling on this question of construction of an agreement under Dutch law, the judge also had to rule on the break fee if no agreement was concluded and whether it should be amended or reduced because of the current Coronavirus / Covid-19 crisis.

              English Language proceedings in a Dutch state court, the Netherlands Commercial Court (NCC)

              The case is not just interesting because of the way contract formation is construed under Dutch law and application of concepts of force majeure, unforeseen circumstances and amendment of agreements under the concepts of reasonableness and fairness as well as mitigation of contractual penalties, but also interesting because it was ruled on by a judge of the English language chamber of the Netherlands Commercial Court (NCC).

              This new (2019) Dutch state court offers a relatively fast and cost-effective alternative for international commercial litigation, and in particular arbitration, in a neutral jurisdiction with professional judges selected for both their experience in international disputes and their command of English.

              The dispute regarding the construction of an M&A agreement under Dutch law in an international setting

              The facts are straightforward. Parties (located in New York, USA and the Netherlands) dispute whether final agreement on the EUR 169 million transaction has been reached but do agree a break fee of €30 million in case of non-signature of the final agreement was agreed. However, in addition to claiming there is no final agreement, the defendant also argues that the break fee – due when there is no final agreement – should be reduced or changed due to the coronavirus crisis.

              As to contract formation it must be noted that Dutch law allows broad leeway on how to communicate what may or may not be an offer or acceptance. The standard is what a reasonable person in the same circumstances would have understood their communications to mean.  Here, the critical fact is that the defendant did not sign the so-called “Transaction Agreement”. The letter of intent’s binary mechanism (either execute and deliver the paperwork for the Transaction Agreement by the agreed date or pay a EUR 30 million fee) may not have been an absolute requirement for contract formation (under Dutch law) but has significant evidentiary weight. In M&A practice – also under Dutch law – with which these parties are thoroughly familiar with, this sets a very high bar for  concluding a contract was agreed other than by explicit written agreement. So, parties may generally comfortably rely on what they have agreed on in writing with the assistance of their advisors.

              The communications relied on by claimant in this case did not clear the very high bar to assume that despite the mechanism of the letter of intent and the lack of a signed Transaction Agreement there still was a binding agreement. In particular attributing the other party’s advisers’ statements and/or conduct to the contracting party they represent did not work for the claimant in this case as per the verdict nothing suggested that the advisers would be handling everything, including entering into the agreement.

              Court order for actual performance of a – deemed – agreement on an M&A deal?

              The Interim Injunction Judge finds that there is not a sufficient likelihood of success on the merits so as to justify an interim measure ordering the defendant to actually perform its obligations under the disputed Transaction Agreement (payment of EUR 169 million and take the claimant’s 50% stake in an equestrian show-jumping business).

              Enforcement of the break fee despite “Coronavirus”?

              Failing the conclusion of an agreement, there was still another question to answer as the letter of intent mechanism re the break fee as such was not disputed. Should the Court enforce the full EUR 30 million fee in the current COVID-19 circumstances? Or should the fee’s effects be modified, mitigated or reduced in some way, or  the fee agreement should even be dissolved?

              Unforeseen circumstances, reasonableness and fairness

              The Interim Injunction Judge rules that the coronavirus crisis may be an unforeseen circumstance, but it is not of such a nature that, according to standards of reasonableness and fairness, the plaintiff cannot expect the break fee obligation to remain unchanged. The purpose of the break fee is to encourage parties to enter into the transaction and attribute / share risks between them. As such the fee limits the exposure of the parties. Payment of the fee is a quick way out of the obligation to pay the purchase price of EUR 169 million and the risks of keeping the target company financially afloat. If financially the coronavirus crisis turns out less disastrous than expected, the fee of EUR 30 million may seem high, but that is what the parties already considered reasonable when they waived their right to invoke the unreasonableness of the fee. The claim for payment of the EUR 30 million break fee is therefore upheld by the Interim Injunction Judge.

              Applicable law and the actual practice of it by the courts

              The relevant three articles are in this case articles 6:94, 6:248 and 6:258 of the Dutch Civil Code. They relate to the mitigation of contractual penalties, unforeseen circumstances and amendment of the agreement under the tenets of reasonableness and fairness. Under Dutch law the courts must with all three exercise caution. Contracts must generally be enforced as agreed. The parties’ autonomy is deemed paramount and the courts’ attitude is deferential. All three articles use language stating, essentially, that interference by the courts in the contract’s operation is allowed only to avoid an “unacceptable” impact, as assessed under standards of reasonableness and fairness.

              There is at this moment of course no well- established case law on COVID-19. However, commentators have provided guidance that is very helpful to think through the issues. Recently a “share the pain” approach has been advocated by a renowned law Professor, Tjittes, who focuses on preserving the parties’ contractual equilibrium in the current circumstances. This is, in the Court’s analysis, the right way to look at the agreement here. There is no evidence in the record suggesting that the parties contemplated or discussed the full and exceptional impact of the COVID-19 crisis. The crisis may or may not be unprovided for.  However, the court rules in the current case there is no need to rule on this issue. Even if the crisis is unprovided for, there is no support in the record for the proposition that the crisis makes it unacceptable for the claimant to demand strict performance by the defendant. The reasons are straightforward.

              The break fee allocates risk and expresses commitment and caps exposure. The harm to the business may be substantial and structural, or it may be short-term and minimal. Either way, the best “share the pain” solution, to preserve the contractual equilibrium in the agreement, is for the defendant to pay the fee as written in the letter of intent. This allocates a defined risk to one party, and actual or potential risks to the other party. Reducing the break fee in any business downturn, the fee’s express purpose – comfort and confidence to get the deal done – would not be accomplished and be derived in precisely the circumstances in which it should be robust. As a result, the Court therefore orders to pay the full EUR 30 million fee. So the break fee stipulation works under the circumstances without mitigation because of the Corona outbreak.

              The Netherlands Commercial Court, continued

              As already indicated above, the case is interesting because the verdict has been rendered by a Dutch state court in English and the proceedings where also in English. Not because of a special privilege granted in a specific case but based on an agreement between parties with a proper choice of forum clause for this court. In addition to the benefit to of having an English forum without mandatorily relying on either arbitration or choosing an anglophone court, it also has the benefit of it being a state court with the application of the regular Dutch civil procedure law, which is well known by it’s practitioners and reduces the risk of surprises of a procedural nature.  As it is as such also a “normal” state court, there is the right to appeal and particularly effective under Dutch law access to expedited proceeding as was also the case in the example referred to above. This means a regular procedure with full application of all evidentiary rules may still follow, overturning or confirming this preliminary verdict in summary proceedings.

              Novel technology in proceedings

              Another first or at least a novel application is that all submissions were made in eNCC, a document upload procedure for the NCC. Where the introduction of electronic communication and litigation in the Dutch court system has failed spectacularly, the innovations are now all following in quick order and quite effective. As a consequence of the Coronavirus outbreak several steps have been quickly tried in practice and thereafter formally set up. At present this – finally – includes a secure email-correspondence system between attorneys and the courts.

              And, also by special order of the Court in this present case, given the current COVID-19 restrictions the matter was dealt with at a public videoconference hearing on 22 April 2020 and the case was set for judgment on 29 April 2020 and published on 30 April 2020.

              Even though it is a novel application, it is highly likely that similar arrangements will continue even after expiry of current emergency measures. In several Dutch courts videoconference hearings are applied on a voluntary basis and is expected that the arrangements will be formalized.

              Eligibility of cases for the Netherlands Commercial Court

              Of more general interest are the requirements for matters that may be submitted to NCC:

              • the Amsterdam District Court or Amsterdam Court of Appeal has jurisdiction
              • the parties have expressly agreed in writing that proceedings will be in English before the NCC (the ‘NCC agreement’)
              • the action is a civil or commercial matter within the parties’ autonomy
              • the matter concerns an international dispute.

              The NCC agreement can be recorded in a clause, either before or after the dispute arises. The Court even recommends specific wording:

              “All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”).”

              The phrase “to the exclusion of the jurisdiction of any other courts” is included in light of the Hague Convention on Choice of Court Agreements. It is not mandatory to include it of course and parties may decide not to exclude the jurisdiction of other courts or make other arrangements they consider appropriate. The only requirement being that such arrangements comply with the rules of jurisdiction and contract. Please note that choice of court agreements are exclusive unless the parties have “expressly provided” or “agreed” otherwise (as per the Hague Convention and Recast Brussels I Regulation).

              Parties in a pending case before another Dutch court or chamber may request that their case be referred to NCC District Court or NCC Court of Appeal. One of the requirements is to agree on a clause that takes the case to the NCC and makes English the language of the proceedings. The NCC recommends using this language:

              We hereby agree that all disputes in connection with the case [name parties], which is currently pending at the *** District Court (case number ***), will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or ”NCC District Court). Any action for interim measures, including protective measures, available under Dutch law will be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCC Court of Appeal”).

              To request a referral, a motion must be made before the other chamber or court where the action is pending, stating the request and contesting jurisdiction (if the case is not in Amsterdam) on the basis of a choice-of-court agreement (see before).

              Additional arrangements in the proceedings before the Netherlands Commercial Court

              Before or during the proceedings, parties can also agree special arrangements in a customized NCC clause or in another appropriate manner. Such arrangements may include matters such as the following:

              • the law applicable to the substantive dispute
              • the appointment of a court reporter for preparing records of hearings and the costs of preparing those records
              • an agreement on evidence that departs from the general rules
              • the disclosure of confidential documents
              • the submission of a written witness statement prior to the witness examination
              • the manner of taking witness testimony
              • the costs of the proceedings.

              Visiting lawyers and typical course of the procedure

              All acts of process are in principle carried out by a member of the Dutch Bar. Member of the Bar in an EU or EEA Member State or Switzerland may work in accordance with Article 16e of the Advocates Act (in conjunction with a member of the Dutch Bar). Other visiting lawyers may be allowed to speak at any hearing.

              The proceedings will typically follow the below steps:

              • Submitting the initiating document by the plaintiff (summons or request as per Dutch law)
              • Assigned to three judges and a senior law clerk.
              • The defendant submits its defence statement.
              • Case management conference or motion hearing (e.g. also in respect of preliminary issues such as competence, applicable law etc.) where parties may present their arguments.
              • Judgment on motions: the court rules on the motions. Testimony, expert appointment, either at this stage or earlier or later.
              • The court may allow the parties to submit further written statements.
              • Hearing: the court interviews the parties and allows them to present their arguments. The court may enquire whether the dispute could be resolved amicably and, where appropriate, assist the parties in a settlement process. If appropriate, the court may discuss with the parties whether it would be advisable to submit part or all of the dispute to a mediator. At the end of the hearing, the court will discuss with the parties what the next steps should be.
              • Verdict: this may be a final judgment on the claims or an interim judgment ordering one or more parties to produce evidence, allowing the parties to submit written submissions on certain aspects of the case, appointing one or more experts or taking other steps.

              Continuous updates, online resources Netherlands Commercial Court

              As a final note the English language website of the Netherlands Commercial Court provides ample information on procedure and practical issues and is updated with a high frequence. Under current circumstance even at a higher pace. In particular for practitioners it’s recommended to regularly consult the website. https://www.rechtspraak.nl/English/NCC/Pages/default.aspx

              This is a summary of the approved measures, which unfortunately for both tenants and landlords do not include any public aid or tax relief and just refer to a postponement in the payment of the rent.

              Premises to which they are applied

              Leased premises dedicated to activities different than residential: commercial, professional, industrial, cultural, teaching, amusement, healthcare, etc. They also apply to the lease of a whole industry (i.e. hotels, restaurants, bars, etc., which are the most usual type of businesses object of this deal).

              Types of tenants

              • Individual entrepreneurs or self-employed persons who were registered before Social Security before the declaration of the state of alarm on March 14th, 2020
              • Small and medium companies, as defined by article 257.1 of the Capital Companies Act: those who fulfil during two consecutive fiscal years these figures: assets under € 4 million, turnover under € 8 million and average staff under 50 people

              Types of landlords

              In order to benefit from these measures, the landlord should be a housing public entity or company or a big owner, considering as such the individuals or companies who own more than 10 urban properties (excluding parking places and storage rooms) or a built surface over 1.500 sqm.

              Measures approved

              The payment of the rent is postponed without interest meanwhile the state of alarm is in force, but in any case, for a maximum period of four months. Once the state of alarm is overcome, and in any case in a maximum term of four months, the postponed rents should be paid along a maximum period of two years, or the duration of the lease agreement, should it be less than two years.

              For landlords different to those mentioned above

              The tenant could apply before the landlord for the postponement in the payment of the rent (but the landlord is not obliged to accept it), and the parties can use the guarantee that the tenant should mandatorily have provided at the beginning of any lease agreement (usually equal to two month’s rent, but could be more if agreed by the parties), in full or in part, in order to use it to pay the rent. The tenant will have to provide again the guarantee within one year’s term, or less should the lease agreement have a shorter duration.

              Activities to which it is applied

              Activities which have been suspended according to the Royal Decree that declared the state of alarm, dated march, 14ht, 2020, or according to the orders issued by the authorities delegated by such Royal Decree. This should be proved through a certificated issued by the tax authorities.

              If the activity has not been directly suspended by the Royal Decree, the turnover during the month prior to the postponement should be less than 75% of the average monthly turnover during the same quarter last year. This should be proved through a responsible declaration by the tenant, and the landlord is authorised check the bookkeeping records.

              Term to apply and procedure

              The tenant should apply for these measures before the landlord within one month’s term from the publication of the Royal Decree-law, that is, from April 22nd, 2020, and the landlord (in case belongs to the groups mentioned in point c) is obliged to accept the tenant’s request, except if both parties have already agreed something different. The postponement would be applied to the following month.

              As the state of alarm was declared more than one month ago (March 14th), landlords and tenants have already been reaching some agreements, for example 50% rent reduction during the state of alarm, and 50% rent postponement during the following 6 months. Tenants who do not reach an agreement with the landlord could face an eviction procedure, however court procedures are suspended during the state of alarm. We have also seen some abusive non-payment of rent by tenants.

              When is becomes impossible to reach an agreement with the landlord, tenants have the legal remedy of claiming in Court for the application of the “rebus sic stantibus” principle, which was highly demanded during the 2008 financial crisis but very seldom applied by the Courts. This principle is aimed to re-balance the parties’ obligations when their situation had deeply changed because of unforeseen circumstances beyond their control. This principle is not included in the Spanish Civil Code, but the Supreme Court has accepted its application, in a very restricted way, in some occasions.

              Summary – What can we learn in the time of Covid-19 that can be used in mediation? And what can we learn from mediation to be used in this crisis?

              As you know, mediation is a way to solve conflicts in which the parties keep in their hands the possible solution. They do not need to come to a third party (judge or arbitrator) to impose the answer to them. Parties can imagine more freely what they need, and how to solve their differences.

              Some of the elements and techniques mediators use in a mediation can also be used in and learnt from the current Time of Covid-19. And the current crisis also helps us to understand why they are so important in mediation.

              Cooperation to get the solution is better than unilateral and imposed decisions

              We usually tend to think that cooperation is a sign of weakness and that we recur to it only if we cannot impose or view or win our case. However, as in the time of Covid-19 where countries, scientists and people should fight together, when facing a conflict cooperation and going beyond your positions brings you the possibility to explore solutions that otherwise remain hidden.

              « Now it is increasingly recognized that there are cooperative ways of negotiating our differences and that even if a “win-win” solution cannot be found, a wise agreement can still often be reached that is better for both sides than the alternative. […]

              Three points about shared interests are worth remembering. First, shared interests lie latent in every negotiation. They may not be immediately obvious. Second, shared interests are opportunities, not godsends. Third, stressing your shared interests can make the negotiation smoother and more amicable. » [Fisher, Richard; Ury, William. “Getting to Yes: Negotiating an agreement without giving in”].

              Listening is highly effective

              In the time of Covid-19 we tend to accept better information that confirms our beliefs and we accept better indications that are in accordance with our preferences and beliefs. Nevertheless, also in this time, listening is of essential importance to understand the causes and solutions.

              A mediator will always listen to the parties and will help them to do the same. Listening the other’s side arguments, its explanation of the facts, interests and needs, the reasons for its decisions… is also of utmost importance to find a joint solution.

              «Whether you are a neutral third party (professional facilitator, friend, or manager) or one of the participants, as you listen to all the stories, you begin to sense the best solution. » [Levine, Stewart. “Getting to Resolution: Turning Conflict Into Collaboration.”]

              A solution for me can also be a solution for you

              In the time of Covid-19 it seems clear to all of us that a common solution is the only possible one. A vaccine will save the entire world. In mediation, the main benefit is to understand that, unlike a court judgement or arbitral award, a joint (not imposed) solution is possible and a benefit for me does not imply a damage or a lost for my opponent.

              «A mediator works to understand each disputant’s perspective and to look for the value in it. In this role, you refrain from judging whose side is right or wrong. Instead, you try to see the merit in each side’s perspective. » [Shapiro, Daniel. “Building Agreement”].

              We master the solution and we create the agreement in a safe environment

              The solution to the current crisis does not only depend on the authorities and on the health professionals. A great part of the solution relies on everybody’s participation, washing our hands, respecting the social distance, staying safe at home avoiding contagion and the collapse of hospitals.

              In court we leave the decision of the conflict in the hands of a third party –the judge, the arbitrator­–. In a mediation, on the contrary, the solution remains in our hands. We know what our interests are, we create our agreement. Our imagination is our ally in finding the solution together with the counterparty and the assistance and experience of the mediator who does not impose it but helps the parties to find it. Quite often, what parties could get in mediation goes far beyond what a judge would’ve been able to grant. And this in a confidential environment.

              «The Sage is self-effacing and scanty of words. When his task is accomplished and things have been completed, all the people say, “We ourselves have achieved it!” » [Lao Tzu]

              Emotions do matter

              Good and bad emotions are inevitable. Particularly in periods of uncertainty, crisis and loose of control, we all face strong emotions. This is true in situations like this Covid-19 and in all conflicts, and not only in personal ones. Egos, envies, fears, anxieties… are also part of our day-to-day life, work and business, but they are rarely considered in courts when solving your conflicts. A mediator helps you to take them into account in a safe environment and as a part of the conflict itself.

              «Solving problems seems easier than talking about emotions. The problem is that when feelings are at the heart of what’s going on, they are the business at hand and ignoring them is nearly impossible. » [Stone, Douglas. “Difficult Conversations: How to Discuss What Matters Most”].

              Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19, even though it affects and produces effects in many different legal fields, does not include any reference to contracts for leases of real estate, or houses, premises or offices.

              The purpose of this note is to analyze the effects of the situation of the State of Alarm regarding those leases of offices or premises that have been forced to close in application of the decree; those others that remain totally or partially open and in operation, although with a reduced or minimal activity, in principle are not subject to the conclusions reached below without prejudice to the fact that there are individualized cases to which, despite the fact that there is not a complete closure, reasonably and logically can be applied to them.

              It is not excluded in any way that in the event of an extension of the validity of the State of Alarm, a regulation that affects the leasing contracts could be published, but for the moment this has not happened. If this were to happen, the content of said norm would apply.

              Based on the principle of freedom of covenants enshrined in art. 1255 of the Spanish Civil Code, which allows the parties signing the contract to agree (i) what scenarios and situations should be considered as constituting cases of Force Majeure and Act of God and (ii) what the contractual consequences of such scenarios should be, the first exercise that must be done is to check if the contract includes a regulatory clause of Force Majeure and its effects; if so, such clause must be followed and its analysis is left out of this note.

              In the absence of express regulation in the contract, the provisions of the Civil Code and specifically article 1105 would apply.

              COVID-19 as Force Majeure

              COVID-19 is an event that in principle meets the requirements of the Civil Code to be classified as an event of Force Majeure (art. 1105 Civil Code) since:

              • It is a foreign act and not attributable to the contractor who is the debtor of the benefit or obligation.
              • It is unpredictable, or if it were said to be “predictable”, it is certainly inevitable.
              • The event in question, the pandemic, must be a cause and result in the breach of the obligation, that is, there must be a causal link.

              Therefore, fulfilling the three requirements, the first conclusion that we reach is that very foreseeably, the Spanish Courts will classify as “Force Majeure” the situation caused by COVID 19 when a judicial dispute is raised in which such matter is discussed between litigants. We will now analyze the consequences of this status.

              Consequences of considering COVID-19 as an event of Force Majeure

              Most of the doctrine and jurisprudence understand that the effects of classifying a scenario as a case of Force Majeure in principle are:

              • Total and definitive impossibility of complying; releasing the debtor from the fulfillment of the obligation.
              • Partial inability to comply; the debtor is released only in the part that it is impossible to fulfill, but still bound by the part that can be carried out.
              • Temporary inability to comply; the debtor is released from the responsibility for default as long as the exceptional situation persists.

              Now, let us analyze how it would affect to considerate the epidemic as Force Majeure in relation to lease agreements for uses other than housing.

              Regarding the payment of rent

              The question to answer is if the classification of the current pandemic situation as a case of Force Majeure frees the tenant (whose premises have been forced to close by order of the government authority) from the obligation to pay the rent while said closing obligation persists, including in the concept of “release” different alternatives: total or partial cancellation and / or total or partial postponement.

              We are meeting these days with a frequent reaction among some tenants, who, unilaterally have informed their landlords that considering COVID 19 an event of force majeure and having been forced to close the premises / office, they suspend the payment of the rent while said situation remains. They do not terminate the contract, they do not hand over the possession, they remain in it (the premises remain closed and not operational) but they suspend the payment (it is not clear whether suspending in this case means liberating himself from the payment of the rent or postponing its payment for when the Force Majeure scenario ends).

              Arguments against liberation

              As much as this attitude can be considered “understandable” from the perspective of the lessee, not from the point of view of the lessor, said consideration runs into an obstacle: the interpretation of the Force Majeure made by the Supreme Court regarding pecuniary payment obligations, according to the Civil Sentence of May 19, 2015:

              “Not being able to consider, in the case of pecuniary debts, the subjective impossibility – insolvency – nor the objective or formal imposition, the doctrine concludes that it is not possible to imagine that if the impossibility is due to a fortuitous event it could have as effect the extinction of the obligation.

              The exoneration of the debtor by fortuitous event is not absolute, it has exceptions, as provided for in article 1105 CC, and one of them, by application of the “genus nunquam perit” principle, would be in cases of obligations to deliver generic things.

              In such circumstances, the pecuniary debtor is obliged to fulfill the main obligation, without the economic adversities freeing him from it, since what is owed is not something individualized that has perished, but something generic such as money”.

              In conclusion: it does not seem that this jurisprudential criterion allows to defend that the fulfillment of the pecuniary obligations is released, extinguished or that its breach is justified in cases of Force Majeure, therefore the pecuniary debtor, in this case the lessee, in application of this criterion and due to the generic condition of the money, would be obliged to fulfill his main obligation not being freed from it by the unforeseen economic adversities on the basis of Force Majeure.

              Arguments in favor of liberation: art. 1575 of the Civil Code

              Having said the foregoing, reference should be made to an article of the Civil Code that, with certainty, will be profusely cited in the upcoming judicial conflicts.

              The art. 1575, dealing with the leasing of rustic estates, recognizes the lessee’s right to the reduction of rent in the event of loss of more than half of the fruits (unless otherwise agreed) in “fortuitous, extraordinary and unforeseen cases … such as fire, war, plague, unusual flood, locust, earthquake or another equally unusual that the contractors have not been able to rationally foresee ”.

              Is this article, foreseen for rustic leases, applicable to urban leases?

              The art. 4.1 CC allows the analogical application of the rules when (i) they do not contemplate a specific assumption and (ii) they regulate a similar situation in which “identity of reason” may be appreciated.

              The Sentence of the Supreme Court from January 15, 2019, that solved a conflict of a lease of a building used as hotel, in which the tenant had sought the reduction of the rent under the clause “rebus sic stantibus” by the crisis of 2008 and had alleged in his favor the application of art. 1575, established:

              “The argumentation of the appealed judgment rejecting the claim to lower the agreed price is also not contrary to the legal criterion that follows from art. 1575 CC, which is the rule that allows the reduction of income in the leasing of productive assets that do not derive from risks of the business itself, it also requires that the loss of benefits originates from extraordinary and unforeseen fortuitous cases, something that by its own rarity could not have been foreseen by the parties, and that the loss of fruits is more than half of the fruits. In this particular case, none of these circumstances concur. The decrease in rents comes from market developments, the parties anticipated the possibility that in some years the profitability of the hotel would not be positive for the lessee and the losses alleged by NH in the operation of the Almería hotel are less than fifty per hundred, without taking into account that the overall result of his activity as manager of a hotel chain is, as the Audience considers proven in view of the consolidated management report, positive”.

              The Supreme Court does not admit the application of art. 1575, but not because it is considered not applicable to non-rustic leases, but because the Court concludes that the requirements are not fulfilled since the 2008 crisis was neither unpredictable and because the lessee’s losses do not exceed 50%.

              But, that interpretation of the Supreme Court together with the wording of art. 4.1 CC would support the claim of the lessee who has no incomes during the State of Alarm to demand a reduction in rental fee that fits the principle of proportionality.

              Regarding early termination at the request of the lessee

              However, we may find situations in which the lessee considering the current situation, decides to terminate the lease in advance, delivering the premises to the lessor.

              They are cases in which the early termination of the contract is intended, without respecting (i) or the mandatory term (ii) or the previous notice, in both cases under the hypothesis that they are thus regulated in the contract.

              In these scenarios, we understand that it may be defendable that, due to the situation of force majeure caused by COVID 19 and in application of art. 1105 of the CC, the lessee is exempt from the obligation:

              1. To respect the mandatory term of the lease
              2. To give prior notice to the lessor in case of early termination of the contract

              In both cases, the contract would be terminated with the delivery of possession of the premises, without prejudice to having to respect the other obligations set forth in the contract for termination and delivery, provided that they are not equally affected by the situation of Force Majeure.

              Our opinion is that, also in application of Article 1,105 of the CC, the thesis that the lessee would be released from any obligation to compensate damages to the lessor for said advance resolution or breach of the obligatory duration of the contract could be defendable before the Courts.

              Conclusion

              In conclusion, when the Courts decide on the effects of the current pandemic (that they will surely classify as Force Majeure), and how this will affect the obligations of leaseholders who have been forced to close their business, our opinion is the following:

              • Regarding the obligation to pay the rent, despite the contrary criterion of the sentence from May 19, 2015, we find defendable the analogue application of art. 1575 of the CC, based as well on the Supreme Court Sentence from January 15, 2019, in order to demand a proportional and equitable reduction of the rent.
              • Regarding the power of the leaseholder to terminate the contract in advance, in case the leaseholder hands the possession of the property to the lessor, we find defendable to exonerate the leaseholder from complying with the advance notice or mandatory term in case provided in the contract, without the obligation to indemnify the lessor for this reason.

              Application of the Rebus Sic Stantibus clause (“RSS” clause)

              We will analyze below if the RSS clause can be applicable to the case that we are studying and with which consequences.

              Requirements of the RSS clause (Latin aphorism that means “things thus standing”)

              The principle RSS operates as an intrinsic clause (that is, implicit, without the need to expressly agree by the parties) in the contractual relationship, which means that the stipulations established in a contract are so in view of the concurrent circumstances at the time, that is, “things thus standing”, so that any substantial and unforeseen alteration of the same could lead to the modification of the contractual content.

              The RSS clause is not regulated in any article in our laws; It is a doctrinal construction that the jurisprudence has traditionally admitted (examples among many other Supreme Court Sentences from June 30, 2014, February 24, 2015, January 15, 2019, July 18, 2019), with great caution, only in certain cases, and requiring the following requirements:

              • That there has been an extraordinary alteration in the circumstances of the contract, at the time that it must be fulfilled, in relation to those present at the time the parties entered the contract.
              • To analyze whether an incident can determine the extraordinary alteration of the circumstances that gave meaning to the contract, we must a) contrast the scope of said alteration regarding the meaning or purpose of the contract and the commutativity or performance balance thereof; and b) the “normal risk” inherent or derived from the contract must be excluded.
              • That there has been an exorbitant disproportion, out of all calculation, between the obligations of the contracting parties, causing an imbalance between them.
              • That the above occurs because of radically unpredictable circumstances.
              • That there is no other remedy to overcome the situation.

              Historically, our courts have been very reluctant to apply RSS, although since the economic crisis of 2008-2012 there has been a certain change in criteria and greater jurisprudential receptivity.

              Consequences of the application of RSS

              The doctrine establishes that the application of the RSS does not have in principle terminating effects on the contract, but only modifying effects, aimed at compensating the imbalance of obligations between the parties;  the doctrine establishes that this only applies to long-term contracts or successive contracts with deferred execution.

              In application of the good faith principle, the reaction to an event of fortuitous event, force majeure or, in general, an event that generates a disproportion between the parties, such as that regulated by the RSS clause, should be the amendment of the contract to rebalance the obligations between the parties, and only in the event of material impossibility to comply with the obligations, the resolution of the obligation, in both cases without compensation for non-compliance.

              For this reason, in relation to leasing contracts and in case of closure of the premises by mandatory mandate, we understand that the RSS clause may be:

              • alleged by the leaseholder to request or urge the lessor to downsize or postpone payment.
              • estimated by the judges, when these assumptions are debated before the Courts, when accepting such contractual amendment as equitable and legitimate in order to compensate the imbalance generated by the effects of COVID 19.

              To summarize, the RSS clause can be a tool for the leaseholder that has had to close its premises during the State of Alarm, when negotiating with the lessor an amendment of the contract, trying to postpone the rent while the State of Alarm or negotiating a discount.

              We should bear in mind:

              • That the RSS clause is unavoidably applicable on a casuistic basis, there are no generalizations and it will be necessary to take into account the effect caused by COVID 19 in each specific contractual relationship (Supreme Court Sentence from June 30, 2014 and February 24, 2015) and the real imbalance of benefits produced, and
              • That, as we have said, the Courts are generally reluctant to apply this clause, that they only apply in the absence of any other legal tool and in situations in which the maintenance of the contractual status quo reveals a manifest “injustice ”and a evident and resounding imbalance between the performance of the parties.

              Does this mean that the leaseholder may impose on the lessor a modification of the economic conditions of the contract under the RSS clause (postponement or total or partial cancellation of the payment)?

              We cannot assure this, what we think is that the application of this RSS clause should:

              • Justify a reasonable request from the leaseholder to temporarily change the conditions of the contract (postponement or cancellation, total or partially) that the lessor must reasonably meet.
              • In case of unreasonable refusal of the lessor, we recommend to document as much as possible leaseholder´s request and the possible negotiations or refusal, in order to substantiate a suspension of the payment of the rent, total or partial, during the State of Alarm aimed, not to extinguish his obligation, but to postpone it.

              We will have to wait for the reaction of the Courts when they judge these conflicts, but if we dare to anticipate that it is quite possible that the judicial tendency will be to grant protection to the leaseholder with support in the RSS clause and the principle of business preservation, when it comes to validating certain modifying effects regarding the payment obligations of the leaseholder (total or partial remission of the rent payment during the pandemic crisis, postponement, or partial postponement).

              In any case, it will be essential to prove, that the behavior of the leaseholder seeking protection in the RSS clause to amend the contract, has been strictly adjusted to the principle of good faith (Supreme Court Sentence from April 30, 2015).

              It will also be important to analyze case by case why the displacement of the risk derived from the “exceptional and unforeseen event” from one contractor to the other is justified (Supreme Court Sentence from January 15, 2015) and could well be defended (Supreme Court Sentence from July 18, 2019) that both contracting parties must divide and assume the consequences between the two of them. The judicial decisions will vary in each specific case.

              Conclusions and Recommendations

              In conclusion, it seems that the leaseholder would have two instruments in order to try to successfully suspend or postpone the payment of the rents, the RSS clause and the principle of Force Majeure.

              In our view, the replacement of the contractual balance altered by the exceptional event, may consist of either an extension of the lease payment terms or the application of a total, or partial cancellation of the rental payment obligation while it lasts the State of Alarm, but we understand that it will be defendable that the delay in the payment may not give rise neither to the termination of the contract under art. 1124 Cc nor to the requirement of damages art. 1105 Cc, therefore, will not empower the lessor to urge eviction.

              Therefore, the steps to be followed in each case would be:

              • Carry out an examination of the contract to check whether force majeure and acts of God are regulated and if the current situation is in accordance with the contract provisions.
              • Should nothing be set forth at the contract, and in case the leaseholder has had to close the premises or office, notify the other party of this circumstance and try to negotiate a novation of the lease requesting:
                • Waiver of the payment obligation during the Alarm State.
                • The application of a discount on the payment obligations with both parties sharing the effects of the pandemic, in a proportion to be agreed.
                • Postponement of payment obligations until the premises or office can be reopened with a payment plan for the deferred debt.

              If it is not possible to reach an agreement, it is advisable to try to maintain evidence that the parties have acted in good faith trying to reach a negotiated solution and at the extreme (from the leaseholder´s point of view) announce, without waiting to receive a communication or claim from the Lessor, the suspension of the rental fee payment until reopening of the premises/offices, justifying the same in the Alarm State.

              《法国商业法》规定，贸易商在未给予充分书面通知的情况下终止书面合同或非正式商业关系(第442-1.1条)将被制裁。在过去的二十年中，这已成为商业关系或合同终止（全部或部分终止）时所有补偿行为（最高可达24个月的毛利率以及其他损害赔偿）的经常性法律依据。

              因此，与法国公司签约的外国贸易商应尽量避开该规则的管辖范围 (第一部分)，如果不能，则应理解并控制其实施 (第二部分)。

              简而言之

              外国公司如何避免或控制与法国法律规定的“突然终止商业关系”有关的风险？

              与法国公司做生意的外国公司应该这样做：

              • 与法国供应商或客户尽快达成书面（框架）协议，即使是非常简单的关系也是如此；
              • 规定一项有利于外国法院或仲裁以及外国适用法律的条款，而如果不能选择该条款，则只能服从法国法院和法律。

              外国公司如何才能掌控法国法律规定的“突然终止商业关系”的风险?

              与法国公司做生意的外国公司应该这样做：

              • 要知道，本条适用于几乎所有类型的商业关系或合同，无论是书面的还是非书面的，无论是定期的还是非定期的;
              • 检查其关系/合同是否期限足够且正常和重要，以及对方是否有合理理由相信该关系/合同会继续维持；
              • 给出终止或不续约（甚至是重大修改）的书面通知，其期限主要考虑到关系的持续时间，与合同通知的时限无关；
              • 谨慎地劝告当事方在遭遇不可抗力和严重过失的情况下，搁置“突然终止”；
              • 如果没有充分的通知，则预计赔偿金额为为每月平均毛利率与未获批准的事先通知的期限之积。

              如何避免适用法国的“突然终止”规则?

              在国际事务中，外国公司必须预见其关系是否将受到法国法律的管辖，并且在发生争议的情况下，是否将其关系提交到法国法院。

              “突然终止合同”的法律适用范围是什么?

              对于一个外国公司来说，要正确地掌握适用于“突然终止”的法国法律冲突法规则框架是相当困难的。巴黎上诉法院在2018年9月19日的裁决（RG 16/05579，DES / 娇韵诗）中隐含提及Granarolo欧盟裁决（07 14 16，N°C196 / 15），该裁决将合同资格扩展至大多数业务关系，以改善可预见性，来应对外国公司试图排除法国法律及其“突然终止”规则的行为。

              突然终止书面合同或“默认合同关系”

              根据关于合同适用法律的罗马一号法规 (EC No 593 / 2008，2008年6月17日)：

              • 如果当事各方选择了外国法律：选择外国适用法律的条款将是有效的，并将受到法国法官的尊重 (服从OMR，请参阅下文)，前提是当事各方选择的法律是明示或确定的。
              • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为它可能也是分销商/加盟商所在国的法律等，或是提供合同服务功能的当事方所在国家/地区的法律。

              突然终止“非默认合同关系”

              如果是非正式关系 (即偶尔下达订单)，法国法官将保留侵权行为资格，并将参考适用于非合同义务法律的《罗马二号条例》(第864/2007号，2007年7月11日)。

              • 如果当事各方选择了外国法律：法国法官应执行草拟的外国法选择条款，条件是该条款明确包含侵权案件。
              • 如果当事各方没有选择法律：法国法律可能会宣布适用，因为这可能是损害发生的国家/地区的法律（无论是发生事件的地点还是造成间接后果的地点），是法国受害者遭受终止结果的总部所在地。

              “突然终止合同”是法国的一项压倒一切的强制性规定吗?

              法国法院的立场相当模糊且令人不满。 简而言之：巴黎商事法庭认为“突然终止”不是OMR，巴黎上诉法院（负责“突然终止”案件的唯一法国上诉法院）却支持OMR资格，而最高法院……对此事保持沉默。尽管罗马一号条例（或罗马二号）第9.1条缺乏严格的推理和理由，但很明显，巴黎上诉法院有司法意愿将“突然终止”归为OMR。 因此，如果向法国法院提出“突然终止”的要求，则该法国法院极有可能排除适用的外国法律，而将其替换为产生于第L 442-1. II条“突然终止”。

              因此，外国公司确保“突然终止”不会妨碍合同的终止或停止续签的唯一可能性，不仅是选择一项适用的外国法律，而且是确保将争端提交外国法官或仲裁庭。

              如何避免法国法院对“突然终止”索赔的管辖权?

              “突然终止”索赔和欧盟内部共同承包商

              欧洲法院的裁决(Granarolo, 2016年7月14日，NC196/15)区分了以下索赔:

              • 书面框架合同或默认合同关系 (仅当欧洲法院所列出的证据由国家法官确定时才存在，即相互承认的关系和承诺的限期，如排他性、特价或交货与付款条件、竞业禁止等)：根据布鲁塞尔一号重铸条例下的管辖权冲突规则，此类索赔具有合同性质；
              • 非正式关系——一种非默认的合同关系 (即不时下达的命令)：在布鲁塞尔一号重铸条例下这样的请求具有侵权性质。

              （a）谁是“突然终止”书面合约或“默契合约关系”的法官?

              • 为了外国法院的利益，管辖权条款将由法国法院执行，即使它是一个不对称的条款 (最高法院，2015年10月7日，Ebizcuss.com / 苹果销售国际)。
              • 在缺乏法院条款选择的情况下，如果以“突然终止”为基础提起诉讼的法国索赔人是服务提供者，例如分销商，代理人等，则法国法院可能具有管辖权 (请参阅欧洲法院 Corman Collins案， 19 12 13，C-9 / 12和布鲁塞尔一号重铸条例第7.1.b.2条)。

              （b）谁是“非默认合同关系”“突然终止”的法官？

              • 我们认为，法国法院可能会继续执行侵权案件中的管辖权条款，特别是明确包含侵权诉讼的条款 (最高法院，1°Ch.Civ.，2017年1月18日，n°15-26105，里维埃拉汽车/阿斯顿马丁拉贡达有限公司)。
              • 在缺乏法院条款选择权的情况下，法国法院将对“突然终止”索赔具有管辖权，所以由位于发生损害事件地点的法官（布鲁塞尔一号第7.3条）负责，而该地点是“突然终止”生效的地方……即如果法国公司是受害者，该地点就在法国。

              “突然终止”索赔和非欧盟共同承包商

              如果一名法国受害者基于非欧盟公司的“突然终止”向法国法院提出索赔，Granarolo解决方案将不在事实上适用。在非欧盟关系中，法国法官只能继续保留侵权资格。在这种情况下，法国法院可以根据损害事件发生的地点保留其管辖权。然而，即使是基于侵权的索赔，在法国也可以承认管辖权条款。

              “突然终止”索赔和仲裁

              制定一项临时条款或机构仲裁条款可能是规避法国法院管辖权的最安全解决方案。理想情况下，该条款将在法国境外确定仲裁庭的席位。根据仲裁员的胜任力原则，法国法院宣布其自身无能力仲裁，除非仲裁条款明显无效或明显不适用，无论合同或侵权理由如何 (特别参见巴黎上诉法院，2019年9月5日，n / 17/03703)。

              结论：外国公司不应公开管辖权和管辖法律问题。他们必须协商出一个安全港湾，否则，被终止的法国受害人将可能有权向法国法官提出“突然终止”的要求（请参阅下面第2部分的内容）

              如何掌握“突然终止”法律的规则?

              在法国法律适用的情况下，外国公司将面临法国商业法典L442 -1.II条对“突然终止”的制裁。 作为一项初步说明，首先必须知道，“突然终止”责任的执行是通知时间太短的结果。 因此，该方案没有制定自动补偿规则。换句话说，一旦终止的发起人发出了合理的通知，基于该通知的责任就可以被免除。

              “突然终止”的先决条件：已建立的商业关系

              所有合同均受该法律制度的约束，法规中规定了特定终止通知的合同除外，例如商业代理合同和公路分包合同的货物运输。

              首先，必须存在一种可以通过书面合同或事实上当事双方的行为所证明的关系。这种关系可以建立在一系列默认续签的合同或由多个订单实现的正常业务流程基础之上。

              第二，这种关系必须具有既定的特征。没有法律定义，但是判例法年复一年地对这一概念进行了界定，判例法已经建立了一个客观标准和一个更主观的标准。

              (a) 客观标准意味着双方之间有足够长期、经常和重要的关系。关系的持续时间是最重要的标准。这种关系必须是有规律的，也就是说，它不能被打断(太频繁或太长时间)。这种关系最终必须是有意义的，并且在数量或价值上代表双方之间的业务流。

              (b) 主观测试主要侧重于受害人在基于事实层面上认为继续的合同/关系（例如投资要求，几年内的预算等）将走向破裂的合理信念。相反，正是基于对共同的未来缺乏合理信念的结果，即当终止方多次提出招标要求时，终止方可以证明其缺乏稳定的品格 (除非这是一个诡计)。

              提前预计“突然终止”索赔

              (a) 终止可以是全部或部分的

              完全破裂是通过关系的完全终止来实现的，例如终止合同、停止买方发送订单或停止供应商记录订单。但是要处理的最复杂的情况是所谓的部分破裂，它是通过对部分影响关系但不会将其减少为零的部分进行修改而得出的 (例如：价格上涨或下跌，付款或交付条件的改变)。

              (b) 终止必须以合理的事先书面通知为准

              通知必须以书面形式通知。没有书面通知本身就是一种违约行为。通知必须清楚地反映一方当事人全部或部分断绝关系的意愿，并且必须清楚地表明这一意愿。双方必须区分正式违约通知函和随后发出的违约通知（如适用）。在通知期间内，双方必须完全遵守所有合同条件。

              在2019年改革之前，法国法律没有明确规定应遵守的事先通知的期限。如果判例法规定了若干标准，则应当指出，最重要的标准是关系的持续时间。法官还考虑到受害人所占的营业额份额、领土排他性的存在与否、产品的性质和活动的范围、受害者进行投资的重要性（特别是对于所涉关系的投资），最后是经济依赖的状态。法官们发出通知的时间长短不一。对通知的评估是逐案进行的。即使是几乎对于一段关系中的一年，也可能需要一个月的通知时间（根据关系中的其他标准进行上下调整），很难给出一个黄金法则。2019年4月24日的法令根据第l442 -1. i条把合理到期的通知期限限制为18个月。但大部分诉讼仍存在不确定性，因为只有特别长寿或特别敏感的关系，才可能导致高于18个月的通知分配时间。

              法官不受合同规定的合同通知书的约束。但是，如果违约方还违反了合同规定的终止条款和条件，则受害人可以在突然终止的侵权基础上，或违反合同义务的基础上，追究违约方的责任。

              排除“突然终止合同”的情况

              法律制度规定了两种情况，而判例法似乎还规定了其他情况。

              (a) 两个法律例外分别是不可抗力（很少被法院神圣化）和遭受终止的受害者的过失，判例法补充说，这必须是对合同承诺或法律规定（如不尊重排他性、竞业禁止、保密或变更控制责任，或未按合同规定支付到期金额）的严重违反。

              当然，法官们认为自己不受界定什么构成严重不当行为的终止条款的约束。在任何情况下，因严重不当行为而终止协议的一方必须在终止协议书中明确通知对方。最重要的是，严重的不当行为会导致通知的缺少，因此，如果终止方指控严重的不当行为，但给予通知，无论是哪种情况下，法官都可能会得出结论，认为该过失不够严重。

              (b)  近年来，判例法增加了其他免责的案例。在这种情况下，破裂是由当事方以外的原因造成的，如经济危机，上游或下游自身客户或供应商的损失。

              无论其期限是什么，法官们还排除了定期合同第一个期限结束的假设中的“突然终止”：合同的首次续签对合同破裂的受害者构成可预见的事件，这就排除了残暴的概念；但一旦合同至少续签了一次，法官随后就可以描述受害者对新的默认续签的合法信念。

              “突然终止”的赔偿

              法官只赔偿暴力行为本身的破坏性后果，但至少在第L442-1.II条的范围内，不赔偿违约行为本身的后果。

              基本规则非常简单：必须确定应授予的通知的期限，从中减去实际授予的通知期限。该净通知时间乘以受害人的平均每月毛利率，或在更通常的情况下，是乘以可变成本的利润，不包括因不履行合同/关系而消失的成本。被告应毫不犹豫地索要完整的会计证据，尤其是确定（较低的）利率，甚至要求就这些会计要素提供司法专业知识。通常，平均每月利润的基数包括最近24或36个月。

              通常，以平均保证金计算的补偿不包括任何其他补偿。但是，受害人可以证明其由于关系破裂的残酷性而遭受了其他损失。例如由于这种野蛮行为直接导致的被解雇或受害者最近进行的投资贬值。

              在预测“突然终止”时的一些实用技巧

              即使法律制度仍然模棱两可，判例法极其苛刻，无法发布强有力的指导方针，但在公司计划终止一段关系/合同时，以下是一些实用建议：

              • 如果定期合同可以默认续签，不续签通知必须在合同通知开始之前提前较长时间发出，以避免出现必须在不续签合同与不充分的通知之间作出选择或同意在新的期限内续签合同的情况;
              • 当商业团队过于激进地改变商业关系/合同的执行条件时，必须让他们意识到部分突然终止的风险；
              • 在某些情况下，发送一份带有“通知建议”的提前终止通知可能有帮助，以便尝试与另一方确认该通知；
              • 在某些关系中，根据产品线的性质，以不同的通知期限来通知关系的结束也是有用的；
              • 最后，最好的方法是缔结关系终止协议，确定通知的期限，并在必要时规定订单的逐步递减，这在和解协议的框架内是完整的，该协议最终将放弃任何索赔 ，包括“突然终止”。

              在进入关系期限的最后阶段时，应考虑“突然终止”制度：必须仔细规划合同（或事实上的关系）终止的方式，以便掌控给对方造成损害和被起诉要求赔偿的风险。

              QUICK SUMMARY: Contract negotiations do not take place in a legal vacuum. A party who negotiates contrary to the principle of good faith and then breaks off negotiations may become liable to the other party. However, the requirements for such liability are high and the enforcement of damage claims is cumbersome. At the end of the post I will share some practical tips for contract negotiations in Switzerland.

              Under Swiss law, the principle of freedom of contract is of fundamental importance. It follows from the freedom of contract that, in principle, everyone is free to enter into contract negotiations and to terminate them again without incurring any liability. A termination of contract negotiations does not have to be justified either.

              However, the freedom of contract is limited by the obligation to act in good faith (cf. article 2 para. 1 of the Swiss Civil Code), which is of equal fundamental importance. From the moment when parties enter into contract negotiations, they are in a special legal relationship with each other. That pre-contractual relationship involves certain reciprocal obligations. In particular, the parties must negotiate in a serious manner and in accordance with their actual intentions.

              Negotiating parties must not stir up the hope of the other party, contrary to their actual intentions, that a contract will actually be concluded. Put differently, a party’s willingness to conclude a contract must not be expressed more strongly than it actually is. If a party realizes that the other party wrongly beliefs that a contract would certainly be concluded, such illusion should be dispelled in due course.

              A negotiating party that terminates contract negotiations in violation of these principles, whether maliciously or negligently, may become liable to the other party based on the culpa in contrahendo doctrine. However, such liability exists in exceptional cases only.

              • The fact that contract negotiations took a long time is not sufficient for incurring such liability. The duration of negotiations is, in itself, not decisive.
              • It is not possible to derive liability from pre-existing contractual relationships between the negotiation parties, as for example in cases where parties negotiate a “mere” prolongation of an existing agreement. The decisive factor is not whether parties were already contractually bound before, but only whether the party that terminated the contract negotiations made the other party believe that a new agreement would certainly be concluded.
              • It is not decisive whether the party who terminates contract negotiations knows that the other party has already made costly investments in view of the prospective contract. In principle, anyone who makes investments already prior to the actual conclusion of a contract does so at its own risk. Even where a party to contract negotiations knows that the other party has already made (substantial) investments in the prospective agreement, a termination of the contract negotiations will, in itself, not be considered as an act of bad faith.

              What does a liability for breaking off negotiations include?

              If a party violates the aforementioned pre-contractual obligations, the other party may be entitled to compensation for the so-called negative interest. This means that the other party must be put in the position it would have been if the negotiations had not taken place. Damages may include, e.g., expenses in connection with the negotiation of the contract (travel costs, legal fees etc.), but also a loss of income in cases where a party was not able to do business with third parties because of the contract negotiations. However, the other party has no right to be treated as if the contract had been concluded (so-called positive interest).

              Having said that, it must be kept in mind that the requirements set by Swiss court for the substantiation of damages are rather high, so that the enforcement of a liability for breaking off negotiations will often be a cumbersome process. Therefore pursuing damage claims with relatively low amounts in dispute might often require a disproportionate effort.

              Practical tips – Do’s and don’ts when negotiating contracts

              • Do not overstate your willingness to conclude a contract. Be frank with your counterparty. Make it clear from the beginning of the negotiations what clauses are important to you.
              • Do not tell the other party that you are willing to sign a contract, if you still have doubts or you are even unwilling to do so. Confirm that you will sign only if you are convinced to do so.
              • Do not allow someone else (e.g., a representative, employee, branch office etc.) to negotiate on your behalf if you are not willing to enter into an agreement anyway. Keep an eye on how the negotiations are going on and intervene if necessary.
              • Do not make costly investments before a legally binding agreement is concluded. If, for time or other reasons, such investments are necessary already before the conclusion of an agreement, insist on the conclusion of an interim contract governing such investments for the event that the envisaged agreement is not concluded finally.

              In 2020, an important revision of the Swiss statute of limitations enters into force. The new law provides for longer limitation periods in cases of personal injury and extends the relative limitation periods in tort and unjust enrichment law from one to three years.

              Background of the revision

              In June 2018, the Swiss parliament adopted an amendment to the Swiss Code of Obligations (“CO”) pertaining to a revision of the statute of limitations. In November 2018, the Swiss government decided that the revised statute of limitations shall enter into force on 1 January 2020.

              The revision was significantly influenced by asbestos cases. Under the current law, damage claims of asbestos victims were time-barred in some cases even before asbestos-related diseases could be diagnosed. In March 2014, the European Court of Human Rights held in Howald Moor and others v. Switzerland that the Swiss statute of limitations amounts in such cases to a violation of article 6 paragraph 1 of the European Convention on Human Rights (right of access to a court).

              Having said that, the revision does not only concern cases of personal injury, but also includes numerous other important changes as described in the following.

              Key changes regarding limitation periods

              A. Tort law

              In tort law, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable (revised Art. 60 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

              With the exception of cases of personal injury, the absolute limitation period remains ten years as from the date when the conduct that caused the damages occurred or ended (revised Art. 60 para. 1 CO).

              In cases of personal injury, the new relative limitation period amounts to three years from the date on which the injured party became aware of the damage and of the identity of the person liable. Currently the relative limitation period amounts to one year only.

              The new absolute limitation period in cases of personal injury amounts to twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 60 para. 1bis CO). Under the current law, there was no special absolute limitation period for cases of personal injury, so that the ordinary 10-year period applied (Art. 60 para. 1 CO).

              If conduct, which gives rise to liability under tort law, is also punishable under criminal law, the (longer) limitation period under criminal law remains applicable (cf. Art. 97 of the Swiss Criminal Code). However, where a first-instance criminal judgment is rendered before the conduct is time-barred under criminal law, the limitation periods ends not earlier than three years as from that criminal judgment (revised Art. 60 para. 2 CO). The current law does not provide for such an additional three-year limitation period.

              B. Unjust enrichment law

              In unjust enrichment law, the new relative limitation period amounts to three years as from the date on which the injured party knows about the claim (revised Art. 67 para. 1 CO). Under the current law, the relative limitation period amounts to one year only.

              The absolute limitation period is not affected by the revision and remains ten years after the date on which the claim arises (revised Art. 67 para. 1 CO).

              C. Contract law

              With regard to contractual claims, the ordinary limitation period remains ten years from the due date (Art. 127 CO). Furthermore, the shorter limitation period of five years from the due date applicable to (amongst others) claims for rent, interest on capital and other periodic payments, (most) claims out of employment relationships etc. remains unchanged too (Art. 128 CO).

              However, in cases of personal injury, the revised statute of limitations introduces a new relative limitation period of three years from the date on which the injured party became aware of the damage, as well as a new absolute limitation period of twenty years after the date when the conduct which caused the damages occurred or ended (new Art. 128a CO). The current law does not provide for distinct relative and absolute limitation periods for contractual claims in cases of personal injury. Instead, the ordinary ten-year limitation period (Art. 127 CO) usually applied to such cases.

              D. Summary

              In summary, the most important elements of the revised statute of limitations are the longer (trebled) relative limitation periods in tort and unjust enrichment law (i.e., three years instead of one year) and the new special rules for cases of personal injury, which now benefit from a 20-year absolute limitation period.

              Transitional provisions / application of the revised statute of limitations to pre-existing claims

              The longer limitation periods under the revised CO apply to any claims that are not yet time-barred when the revision enters into force (i.e., on 1 January 2020; revised Art. 49 para. 1, Final Title of the Swiss Civil Code). In other words, the limitation periods of any claims that do not become time-barred until 31 December 2019 at the latest will be prolonged. This is of particular relevance with regard to claims based on tort and unjust enrichment; the short one-year relative limitation periods under the current law will be extended by another two years.

              In contrast, the current law remains applicable in case the revised statute of limitations provides for shorter limitation periods (revised Art. 49 para. 2, Final Title of the Swiss Civil Code). This concerns, in particular, contractual claims in cases of personal injury. The new three-year relative limitation period under the revised law might not apply to such claims, as the current statute of limitations does not provide for a relative limitation period at all.

              Further changes brought by the revision

              In addition to the changes of the limitation periods set out above, the revision of the statute of limitations contains numerous further modifications. Some of them are listed in the following:

              1. Limitation periods do not commence or are suspended in the event that a claim cannot be asserted for objective reasons before any court worldwide (revised Art. 134 para. 1 no. 6 CO). The current law provides for such non-commencement or suspension only if the claim cannot be brought before a Swiss court.
              2. Parties to a dispute may agree in writing that limitation periods shall be suspended during settlement discussions, mediation proceedings or other out-of-court settlement proceedings (revised Art. 134 para. 1 no. 8 CO).
              3. Once a limitation period has commenced to run, waivers of statute of limitation defenses are admissible, but must not exceed ten years (revised Art. 141 para. 1 CO). Any such waivers must be in writing (new Art. 141 para. 1bis CO).
              4. In general terms and conditions (“GTC”), statute of limitation defenses may be waived by the party who makes use of the GTCs only. In contrast, a waiver by the party on whom the GTCs are imposed (e.g., consumers) is ineffective (new Art. 141 para. 1bis CO).
              5. The limitation period for an actio pauliana under the Swiss Debt Enforcement and Bankruptcy Act (“DEBA”) is extended to from currently two years to three years after service of a loss certificate, the opening of bankruptcy proceedings or the confirmation of a composition agreement with an assignment of assets (whichever is applicable; revised Art. 292 DEBA).

              If 2017 was the year of Initial Coin Offerings, 2018 was the year of Blockchain awareness and testing all over the world. From ICO focused guidelines and regulations respectively aimed to alarm and protect investors, we have seen the shift, especially in Europe, to distributed ledger technology (“DLT”) focused guidelines and regulations aimed at protecting citizens on one hand and promote DLT implementations on the other.

              Indeed, European Union Member States and the European Parliament started looking deeper into the technology by, for instance, calling for consultations with professionals in order to understand DLT’s potentials for real-world implementations and possible risks.

              In this article I am aiming to give a brief snapshot of firstly what are the most notable European initiatives and moves towards promoting Blockchain implementation and secondly current challenges faced by European law makers when dealing with the regulation of distributed ledger technologies.

              Europe

              Let’s start from the European Blockchain Partnership (“EBP”), a statement made by 25 EU Member States acknowledging the importance of distributed ledger technology for society, in particular when it comes to interoperability, cyber security and efficiency of digital public services. The Partnership is not only an acknowledgement, it is also a commitment from all signatory states to collaborate to build what they envision will be a distributed ledger infrastructure for the delivering of cross-border public services.

              Witness of the trust given to the technology is My Health My Data, a EU-backed project that uses DLT to enable patients to efficiently control their digitally recorded health data while securing it from the threat of data breaches. Benefits the EU saw in DLT on this specific project are safety, efficiency but most notably the opportunity that DLT offers data subject to have finally control over their own data, without the need for intermediaries.

              Another important initiative proving European interests in testing DLT technologies is the Horizon Prize on “Blockchains for Social Good”, a 5 million Euros worth challenge open to innovators and tech companies to develop scalable, efficient and high-impact decentralized solutions to social innovation challenges.

              Moving forward, in December last year, I had the honor to be part of the “ Workshop on Blockchains & Smart Contracts Legal and Regulatory Framework” in Paris, an initiative supported by the EU Blockchain Observatory and Forum (“EUBOF”), a pilot project initiated by the European Parliament. Earlier last year other three workshops were held, the aim of each was to collect knowledge on specific topics from an audience of leading DLT legal and technical professionals. With the knowledge collected, the EUBOF followed up with reports of what was discussed during the workshop and suggest a way forward.

              Although not binding, these reports give a reasonably clear guideline to the industry on how existing laws at a European level apply to the technology, or at least should be interpreted, and highlight areas where new regulation is definitely needed. As an example let’s look at the Report on Blockchain & GDPR. If you missed it, the GDPR is the Regulation that protects Europeans personal data and it’s applicable to all companies globally, which are processing data from European citizens. The “right to erasure” embedded in the GDPR, doesn’t allow personal data to be stored on an immutable database, the data subject has to be able to erase data anytime when shared with a service provider and stored somewhere on a database. In the case of Blockchain, the consensus on personal data having to be stored off-chain is therefore unanimous. Storing personal data off-chain and leaving an hash to that data on-chain, is a viable solution if certain precautions are taken in order to avoid the risks of reversibility or linkability of such hash to the personal data stored off-chain, therefore making the hash on-chain personally identifiable information.

              However, not all European laws apply to Member States, therefore making it hard to give a EU-wide answer to most DLT compliance challenges in Europe. Member States freedom to legislate is indeed only limited/influenced by two main instruments, Regulations, which are automatically enforceable in each Member State and Directives binding Member States to legislate on specific topics according to a set of specific rules.

              Diverging national laws have a great effect on multiple aspects of innovative technologies. Let’s look for instance at the validity of “smart contracts”. When discussing the legal power of automatically enforceable digital contracts, the lack of a European wide legislation on contracts makes it impossible to find an answer applicable to all Member States. For instance, is “offer and acceptance” enough to constitute a contract? What is considered a valid “acceptance”? What is an “obligation”? “Can a digital asset be the object of a legally binding agreement”?

              If we try to give a EU-wide answer to the questions such as smart contract validity and enforceability it is apparently not possible since we will need to consider 28 different answers. I, therefore, believe that the future of innovation in Europe will highly depend on the unification of laws.

              An example of a unified law that has great benefits on innovation (including DLT) is the Electronic Identification and Trust Services (eIDAS) Regulation, which governs electronic identification including electronic signatures.

              The race to regulating DLT in Europe

              Let’s now look briefly at a couple of Member States legislations, specifically on Blockchain and cryptocurrencies last year.

              EU Member States have been quite creative I would say in regulating the new technology. Let’s start from Malta, which saw a surprising increase of important projects and companies, such as Binance, landing on the beautiful Mediterranean Island thanks to its favorable (or at least felt as such) legislations on DLT. The “Blockchain Island” passed three laws in early July to regulate and supervise Blockchain projects including ICOs, crypto exchanges and DLT, specifically: The Innovative Technology Arrangements and Services Act regulation that aims at recognizing different technology arrangements such as DAOs, smart contracts and in future probably AI machines; The Virtual Financial Assets Act for ICOs and crypto exchanges; The Malta Digital Innovation Authority establishing a new supervisory authority.

              Some think the Maltese legislation lacks a comprehensive framework, one that for instance, gives legal personality to Innovative Technology Arrangements. For this reason some are therefore accusing the Maltese lawmakers of rushing into an uncompleted regulatory framework in order to attract business to the island while others seem to positively welcome the laws as a good start for a European wide regulation on DLT and crypto assets.

              In December 2018, Malta also initiated a declaration that was then signed by other six Members States, calling for collaboration for the promotion and implementation of DLT on a European level.

              France was one of the signatories of such declaration, and it’s worth mentioning since the French Minister for the Economy and Finance approved in September a framework for regulating ICOs and therefore protecting investors’ rights, basically giving the AMF (French Authority for Financial Market) the empowerment to give licenses to companies wanting to raise funds through Initial Coin Offerings.

              Last but not least comes Switzerland which although it is not a EU Member State, it has great degree of influence on European and national legislators when it comes to progressive regulations. At the end of December, the Swiss Federal Council released a report on DLT and the law, making a clear statement that the existing Swiss law is sufficient to regulate most matters related to DLT and Blockchain, although some adjustments have to be made. So no new laws but few amendments here and there, which will allow the integration of the specific DLT applications with existing laws in order to ensure legal certainty on certain uncovered matters. Relevant areas of Swiss law that will be amended include the transfer of rights utilizing digital registers, Anti Money Laundering rules specifically for decentralized trading platforms and bankruptcy when that proceeding involves crypto assets.

              Conclusions

              To summarize, from the approach taken during the past year, it is apparent that there is great interest in Europe to understand the potentials and to soon test implementations of distributed ledger technology. Lawmakers have also an understanding that the technology is in an infant state, it might involve risks, therefore making it complex to set specific rules or to give final answers on the alignment of certain technology applications with existing European or national laws.

              To achieve European wide results, however, acknowledgments, guidelines and reports are not enough. The setting of standards for lawmakers applicable to all Member States or even unification of laws in crucial sectors influencing directly or indirectly new technologies, will be the only solution for any innovative technology to be adopted at a European level.

              The author of this post is Alessandro Mazzi.