西班牙-分销协议和善意补偿

2018年9月26日

  • 西班牙
  • 分销协议

The Spanish Law of the Agency Contract and the European Directive provide for the agent -except in certain cases-, goodwill compensation (clientele) when the relationship is terminated, based on the remuneration received by the Agent during the life of the contract. It is, then, a burden that in general every Principal will have pending when the contract ends.

The temptation is to try to get rid of that payment and for this clients consult us frequently about strategies or tactics. I will try to summarize some of them indicating the chances of success (or not) that may have, both in the negotiation / drafting phase of the contract, and in the resolution phase.

  1. Change the name of the contract

The first idea is to make a contract “similar” to the agency or call it in a different way (services, intermediation, representation contracts…). However, the change of name does not have any incidence since the contracts “are what they are” and not what the parties call them. So if there is a continued mediation in exchange for remuneration, there is a good chance that a judge will consider it an agency contract, whatever we call it, and with all its consequences.

  1. Limitation of compensation in the contract

Another temptation in the drafting phase of the contract is to agree compensation less than the maximum legally envisaged, provide for payment in advance for the duration of the contract, or directly eliminate it.

None of these solutions would be valid if they try to reduce the possibility of the Agent to receive the legal maximum, or for reasons not foreseen in the Law or the Directive. The law is imperative.

  1. Linking different agency contracts

Given that the compensation is calculated according to the remunerations of the last five years and the clientele created, the temptation is to link several shorter contracts to consider only the clients of the last period.

This will not necessarily be a good idea if most of the customers were created last year for instance, but it may also be useless because the Spanish law and the Directive provide that the fixed-term contract that continues to be executed becomes indefinite. The judge may consider all linked contracts as one.

For this strategy to have the possibility of being useful, it would be necessary to liquidate each substituted contract, declare that “nothing has to be claimed by the parties” and that the successive contracts are sufficiently separated and have different entities, drafting, extension, etc. If the procedure is well thought out, it could be a way to get rid of a greater indemnity by clientele: a well-written pact whereby the agent declares the compensation received, and the following contract does not mimic the content and immediately to the previous one.

  1. Submitting the agreement to a foreign law

In international contracts the temptation is to submit the contract to a right that is not Spanish, particularly when the Principal has that citizenship.

The idea can be good or bad according to the chosen law and as long as it has some relation with the business. As is known, in the EU the Directive establishes minimum conditions that national laws must respect. But nothing prevents these laws from providing more advantageous conditions for agents. This means that, for example, choosing French law would be, in general, a bad idea for the Principal because compensation in that country is usually higher.

In some cases, the choice of a law outside the European Union that does not provide compensation for clientele when the agent is European has been rejected because that the minimum right recognized in the Directive has not been respected.

  1. Submit the contract to non-national rules and judges

Another less frequent possibility is to submit the contract to rules not from a country, but to general commercial norms (Lex Mercatoria) and to agree on a lower compensation.

This is very uncommon and may not be very useful depending on who is to interpret the contract and where the agent resides. If, for example, the agent resides in Spain and who is going to interpret the contract is a Spanish judge, he will most likely interpret the contract according to his/her own rules without being bound by what the contract envisages. This clause would have been useless.

  1. Submit the contract to arbitration

The question will be different if the contract is subject to arbitration. In this case, arbitrators are not necessarily subject to interpreting a contract according to their own national regulations if the contract is subject to different one. In this case, it would be possible that they felt freer to consider the contract exclusively, especially when the agent was not of their nationality, did not know what the law of the agent’s country and was not bound by the guarantees provided for his protection.

  1. Mediation in the agency contract

Mediation is an alternative dispute resolution system that can also be used in agency contracts. In mediation, the parties resolve the dispute by themselves with the help of a mediator.

In this case, given that the mediator is not deciding, it is possible for the parties to freely reach an agreement whereby the agent agrees to a minor indemnification if, for example, other advantages are conferred upon him, if he comes to the conviction of having less right, difficulty of proof, if he prefers to save other costs, time, energy for your new business, etc.

Mediators ensure the balance of the parties, but nothing prevents them to agree a compensation lower than the legal maximum (after the conclusion of the contract it is possible to negotiate a lower than the legal maximum). To foresee the possibility of mediation in the agency contract is, therefore, a good idea: this will permit the parties to better address and negotiate this compensation. In addition, providing for mediation does not limit the rights of any of the parties to withdraw and continue through the courts demanding the legal maximum.

  1. Imputing to the agent a previous breach

When the contract ends, this is undoubtedly the cause that is most often attempted: when the contract is to be resolved, the Principal tries to argue that the Agent has previously failed to comply and that this is why the contract is being resolved.

The law and the Directive exempt the payment of goodwill compensation when the agent has breach his obligations. But in that case, the Principal must be able to prove it when the agent discusses it. And it will not always be easy. The Principal must provide clear evidence and for this it will be convenient to collect information and documentation on the breach sufficiently and in advance and of sufficient importance (minor breaches are not usually accepted). Therefore, if the Principal wishes to follow this path it is advisable to prepare the arguments and evidences time before the agreement ends. It is strongly recommend contacting an expert advisor as soon as possible: he will help you to minimize the risks.

The procedure to incorporate a foreign owned company in Spain is, in principle, easy and straight forward, however it is necessary to take into account certain new requirements derived from the tax and the anti-money laundering regulations, which could cause long delays in the incorporation process, even to EU and US companies, if they are not well advised and managed from the beginning of the procedure.

The first step consist in collecting information about the foreign shareholder, in order to be able to prove its legal existence and activities: the foreign shareholder(s) will have to grant before a Notary Public in its country of residence a power of attorney authorising somebody in Spain to obtain its tax identification number (“NIE”), and also represent it before the Spanish notary when signing the deed of incorporation. In case the foreign shareholder is an individual person, the NIE should be applied for before the Spanish police or the Spanish Consulate at the country where the investor lives.

If the shareholder is a corporation, apart from the Power of Attorney, it will have to obtain a certificate from its Companies’ Registry or Chamber of Commerce, stating its legal existence and main characteristics. This document is called “good standing certificate” (in the UK and US), “K-bis” (in France), “KvK” (in the Netherlands) or “visura” (in Italy). These two documents, the Power of Attorney mentioned in the above paragraph and the certificate from the Companies’ Registry, will have to be Apostilled or legalized by the correspondent Ministry, and Sworn translated into Spanish. Please note that we use to draft bilingual powers of attorney in order to avoid its sworn translation.

The foreign shareholder will have to prove that its income is obtained from legal activities in order to be able to open a bank account in the name of the new company. The main document to prove this could be the Corporate or the Personal Income Tax return filed in its country of residence, but there could be other means, especially in case of individual persons.

In case of a corporate shareholder, it will be necessary as well to declare, in principle through a public deed granted in Spain, who are the individual persons who, directly or through other companies, will hold more than a 25% interest in the new company to be incorporated. In case nobody holds more than a 25% (i.e. because there are 5 individual shareholders, holding each of them a 20%), it is declared that the effective control of the new company corresponds to its director.

At this stage, it is also necessary to mention that the person(s) who will be the director(s) of the new company, in case they are foreigners, will also need to obtain their personal “NIE”. The NIE should be applied for before the Spanish police (this could be done by a proxy duly authorised though a Power of Attorney granted by the foreign director) or before the Spanish Consulate nearest to the city where the investor lives. In order to be a director of a Spanish company it is not necessary to be a shareholder, nor to have residence and work permit in Spain (provided the foreign director does not live in Spain).

Meanwhile the necessary documents (Powers of Attorney, Companies’ Registry certificate, etc.) are being prepared by the foreign shareholder, the lawyer in Spain will apply for the new company’s name. It is advisable to point out that generic or usual names are not available quite often, therefore it is necessary to think in original names. Three different names could be applied for simultaneously.

The drafting of the company’s Articles of Association or By Laws could be very quick, except if the company is going to have several shareholders and they wish specific clauses. In this case, it is also advisable to draft a Shareholders Agreement. The Shareholders’ Agreement could just contain some basic rules on dedication, compensation, non-competition, etc. and some more sophisticated rules on the sale of shares (tag along and drag along rights). As regards the By-Laws, they should mention the company’s name, its activity or activities, address in Spain –which cannot be just a P.O. Box-, share capital, number of shares and its face value, and starting date for the fiscal year, among other standard clauses.

The management of the company could be organized through a sole director, two directors who could act jointly or separately, and in case there are more than three directors, they should organize themselves through a Board of Directors, being usual in this case to appoint a C.E.O. In order to be a director it is not necessary to be a shareholder. Under Spanish laws, the director(s) could be held liable for some company’s debts under certain circumstances which are legally defined. For this reason, it is necessary that the directors formally accept their appointment (personally appearing before the Notary or through a Power of Attorney).

Before the incorporation, it will be necessary that either the new company’s director (the person to be appointed) or the representative of the corporate shareholder appears personally before the bank where the company will have its first bank account and signs the correspondent documents (KYC regulation). Once the bank account is opened, the shareholder will have to send a bank transfer for the new company’s share capital. In Spain, the minimum share capital for a limited company (S.L.) is Euros 3.000, while for a “Sociedad Anónima” (S.A.) it is Euros 60.000, but only 25% should be paid off at the incorporation moment. It is interesting to note that contributions to the share capital could be made in cash – which is the most common operation, especially at the incorporation – or in kind, with any type of assets: real estate, machinery, goods, trademarks, etc. The money for the share capital should be sent to the new company’s bank account from an account owned by the shareholder (or from each account owned by each shareholder, should they be several ones), not by any other different person. Once the Spanish bank receives the transfer, it will issue a certificate, which is necessary in order to incorporate the company.

Once all the documents are ready, it is possible within very few days (almost immediately) to make the appointment with the Notary and sign the public deed of incorporation. This can be done at any notary in Spain, not being necessary that the notary practises at the same city where the company will have its corporate address. In order to summarize, the list of the necessary documents is:

  • Power(s) of Attorney granted by the foreign shareholder(s), apostilled and sworn translated.
  • Certificate regarding the legal existence of the foreign shareholder (only if it is a corporation), apostilled and sworn translated.
  • Statement on who are the last individual shareholders holding more than 25% interest in the new company, directly or indirectly (only in case of corporate shareholders).
  • NIE of the foreign shareholder(s).
  • NIE of the new company’s director(s), should they be a foreigners.
  • Certificate for the new company’s name.
  • Articles of Association.
  • Bank certificate regarding the contribution to the new company’s share capital.

The deed of incorporation is signed by the proxy (or the individual shareholder(s), should they prefer to personally appear before the notary) before the chosen public notary, being also necessary to sign an official form to report the foreign investment to a public registry depending on the Spanish Ministry of Finance.

Once the deed of incorporation is signed, the next steps consist in applying before the tax authorities to obtain the new company’s tax number (NIF / CIF) and filing the deed of incorporation before the Companies’ Registry. Some banks do allow new companies to operate once they have the NIF (which could be 2-3 days after the incorporation), while others request to wait until the deed of incorporation is filed at the Companies’ Registry (2-3 weeks).

An estimation of the necessary time to complete all the procedure is 30-45 days, but of course the main delay is related to speed of the foreign investor in obtaining the necessary documents.

Please note that if you wish to incorporate a foreign owned company in Spain it is always necessary to seek specific professional advice, as each case is different and regulations and the application of such regulations vary from time to time. The above article just explains the main steps and requirements for the incorporation of a company.

Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

  1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

  1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
  2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
  3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
  4. Costs are reasonable and known in advance.
  5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

西班牙企业家法 (第14/2013号法)准予了非欧盟国家的外国人可以通过执行投资获得西班牙的居留许可的条件：

  1. 房地产的投资金额等于或高于500,000欧元（五十万欧元）。投资可以在一个或多个房产中进行，但至少500,000欧元应该没有产权负担（抵押贷款，即）。如果价格高于500,000欧元，其余金额可以通过抵押支付。
  2. 金融投资金额等于或高于100万欧元。此类投资包括上市和非上市股票，如果是非上市股票，则可能来自已经运营的公司或新成立的股票，投资基金和西班牙银行的存款。
  3. 对西班牙主权债务的投资，金额等于或高于200万欧元。
  4. 在西班牙进行一项符合公共利益的商业项目。为此，应满足其中一个条件：创造就业机会，执行对其所在地区产生积极影响或对科学或技术创新作出相关贡献的投资。

通过这种执行投资准予的签证至少有一年的效期。为了获得居住证，必须具备下列条件:

  • 年满十八岁
  • 没有犯罪前科
  • 有健康险(由在西班牙营业的公司聘用)
  • 拥有在西班牙居住的经济手段（即银行存款，或租赁或股息收入。工资单不符合此目的）。

具备上述条件，可以准予两年居住和工作许可。两年后，居留许可可延长五年。

在所有这些期间的投资都应该被保留。这个许可不需要外国人在西班牙居住超过六个月；因此，如果外国人居住在其他国家，这个许可也不会被取消。

居住和工作许可证授予执行投资的个人。如果他/她已婚并且/或者有孩子或祖先依赖投资者，则可以同时或稍后申请签证。通过投资者拥有的公司可以执行投资，前提是该公司营业地不在免税区。

西班牙居住许可证允许在欧盟国家（申根地区）内的自由流动。有效的旅行证件是护照。

愿意在西班牙开展自营职业项目的外国人可以获得工作和居留许可，但通过与上述不同的程序。在这个情况下，最低投资额较低。

房地产投资

房地产投资可以涉及住宅，商业或工业产权。该产权可在收购前或收购后租赁给第三方，或由投资者使用。对于雄心勃勃的投资者而言，有几种可能性来构建对建筑物和公寓的投资以及更高的投资回报。

相关房地产的收购需要支付一些费用：该收购按转让税征税，收购价格为6％至10％。税额具体取决于房产所在的每个西班牙地区，由买方支付。此外，买方应支付公证人和物业登记处的费用，这大约相当于收购价格的3％（两者相加）。购买财产时，这些金额一次支付。

在西班牙房地产所有权相关的年度成本如下：

  • IBI或当地财产税，其金额根据物业的价值和地点计算。
  • “社区开支”，即与维护建筑物公共区域相关的费用：清洁，照明等。
  • 在某些情况下，还应向市议会支付小额垃圾税。
  • 如果房产未出租给第三方，业主应提交西班牙个人所得税申报表，并支付房产“地籍价值”（官方价值）的1,1％至2％。如果房产是租赁的，业主还应根据从租赁中获得的金额提交个人所得税申报表。

此外，业主还应支付与其财产有关的费用：普通维护费，保险费，电费和水费等。

在西班牙，产权被视为一项完全权利。业主可以自己使用该财产，可以将其出租给第三方，可以抵押，可以出售或赠送给任何第三方并且可以通过遗嘱继承给他的继承人。

所有权人或由他指定的人使用财产的唯一限制是由公民规则确定的有关噪音、宠物、财产外部形象等。

关于房产租赁，原则上是免费的，房东和房客的权利和义务是双方签订的私人租赁协议和西班牙城市租赁法（Ley de Arrendamientos Urbanos）提供的权利和义务。然而，如今许多西班牙城市（特别是巴塞罗那）已批准对所谓的旅游租赁进行强制限制，这些租约是短期（数天或数周）租约，并要求获得特别许可。

需要指出的重要一点是获得西班牙居住许可证的外国人可以准予根据西班牙继承法（根据欧盟法规650/2012）授予他们的遗嘱。这些法律根据每个西班牙地区有不同。比如，在加泰罗尼亚立遗嘱者可以任命继承人。

金融投资

金融投资可以通过不同的目标执行，最低金额一百万欧元。

  • 在西班牙股票市场上市的公司股份。
  • 非上市公司的股份，可能是非上市公司经营公司或新成立的公司。 在这两种情况下，外国人可以拥有的股份比例没有限制，而非欧盟外国投资的活动部门很少（赌博，国防，航空，电视和广播）。 外国人可以被任命为西班牙公司的董事，唯一条件是先前获得所谓的“I.E.”，这是外国人的西班牙身份证号码。

有新成立公司的情况下，要求投资的100万欧元将是公司的股本，并可用于公司的活动启动：例如，收购货物、支付工资和租金、支付供应商和分包商等

西班牙公司进入欧洲市场，并且享有与拉美国家进行贸易的特权地位。

  • 投资基金：西班牙金融实体提供范围广泛的投资基金，从非常保守到高风险。

银行存款

房地产投资与金融投资相比，房地产投资的主要优势在于所要求的金额仅为房地产500,000欧元，而金融投资则为此金额的两倍。企业家法

自“企业家法”生效以来，房地产投资一直是获得西班牙居留许可的最受欢迎的方式，可能是因为当时（2013-2016）房地产市场价格相当低,因为2008年的崩溃。

然而,在西班牙购买房地产的过程与购买投资基金的股份或存入银行相比并不那么容易:投资者应该选择房地产(通常需要一次或两次访问西班牙)、价格和销售条件必须经过协商和起草，购买契约必须在公证人面前由投资者或其代理人签署，有与收购相关的税费和费用;购买房产地以后，就必须支付发生的费用和税款，并保持财产状况良好。

与此相比，投资于资金或银行存款只需要投资者到银行一次，才能签署相关文件。没有相关的税收或费用，投资的流动性是充分的（即投资可以随时出售，很可能是以同样或更高的价格出售，但这对房地产投资没有保障）。

如何在西班牙开设和经营银行账户

在西班牙银行适用有关反洗钱的规定，其中包括KYC (了解你的客户Know Your Client)规则和证明基金合法来源的义务。KYC规则意味着投资者需要至少一次亲自出现在银行面前，在操作银行账户之前。资金的合法来源可以通过以下方式证明:

  • 有员工的情况下，通过工资单拆分，或雇主签发的证书，或投资者的个人所得税申报表。
  • 有自雇人士的情况下，通过个人所得税申报表或其他证明其专业活动的文件。
  • 有公司所有者的情况下，则通过公司的财务报表。
  • 如果投资者通过个人贷款获得了投资所需的资金，则应提供贷款协议，以及证明贷方提供资金合法来源的文件。
  • 可以提供其他文件，例如关于投资者拥有的房产租赁的股息或收入的文件。

所有文件应由公证人或西班牙领事馆认证，并宣誓翻译成西班牙文。

请您注意，本文章的目的是提供关于上述主题的西班牙法规则的一般概述，但本文的内容并不提供详尽的信息。做出任何决定之前，应该寻求法律咨询。

In all M&A operations one of the issues that deserves special attention as regards its analysis, ascertainment and negotiation is the tax liabilities. Even though the parties could agree on the amount of such contingencies, to negotiate the possible guarantees that the seller should grant in order to protect the buyer from a possible claim by the tax authorities, the term during which the guarantees should be in force, and to agree on the communication mechanisms between the parties (buyer and seller) and the legal defense strategies if such claim from the tax authorities arises, requires substantial negotiation efforts.

When the acquisition operation is formalized not through the purchase of shares, but through the purchase of the assets that form a business unit, the Spanish General Tax Law (“Ley General Tributaria” or “LGT”) provides a mechanism which implies an exception to the general principle provided by article 42 of the same law. Article 42 of LGT establishes the joint liability of the purchaser of a business unit for the tax liabilities of the selling company (“tax liability derived from company’s succession”). That is, in principle, according to article 42 of the LGT “the persons or entities that continue by any mean in the ownership or exercise of economic activities (the buyers) will be jointly liable with the previous owner for the tax liabilities derived from the exercise of such economic activities incurred by such previous owner”.

However, the joint tax liability of the buyer could be limited through the application before the tax authorities of the tax certificate regulated by article 175.2 of the LGT. This certificate should be applied for by the prospective buyer, with the authorization of the present owner (the seller), and, once issued, the tax liability of the buyer becomes limited to the debts, penalties and liabilities mentioned in the certificate. If the certificate is issued without mentioning any amount, or if the tax authorities do not issue it within a three months term from the application’s date, the applicant (the buyer) will be released from any tax liability derived from company’s succession.

The tax certificate for succession purposes includes the main taxes, as Value Added Tax and Corporate Income Tax, and can include as well debts derived from the withholding taxes on employees’ payroll, which in case of companies with a big number of employees could be of an outstanding amount. However, the buyer’s joint liability for salaries, related payroll amounts and social security contributions cannot be limited by such certificate, and such liability will always be joint with the business unit seller’s liability.

The application for the tax certificate should be filed before the acquisition of the business unit is completed, even if the issuance of the certificate takes place later tan the closing date (but of course, it is wiser to not close the acquisition before having the certificate). The certificate’s validity lasts for one year, as regards periodical tax obligations (for example, Value Added Tax, Corporate Income Tax and withholding taxes on salaries) and for three months as regards non periodical tax obligations.

It is very important to apply for the right tax certificate (“certificate for succession purposes according to article 175.2 of LGT”), and to not make a mistake and apply, for example, for the certificate regarding having fulfilled all tax obligations (“certificado de estar al corriente de las obligaciones fiscales”). Case law is plenty of judgments where a buyer applied for the wrong certificate, which showed no liabilities, and later on such buyer has been sentenced to pay the tax liabilities incurred by the previous owner of the business unit.

根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

The remuneration of directors is an intricate issue and one that deserves adequate treatment. Recently there has been a turn that deserves special attention.

In its judgment of February 26, 2018, the Supreme Court modified the interpretation given by most experts and authorities and by the Directorate-General of Registries and the Notarial Profession in its decision dated June 17, 2016, ratified by the Barcelona Provincial Appellate Court in its decision 295/2017 of June 30, 2017, on the regulation of executive directors’ compensation.

In its judgment, the Supreme Court held that the compensation of directors “in their capacity as such” includes the compensation of both deliberative and executive functions and that, accordingly, approval of the compensation of directors who discharge executive functions is subject not only to article 249 of the Corporate Enterprises Law (i.e., the requirement for there to be a contract approved by a two-thirds majority of the board) but also to article 217. Consequently:

  1. the bylaws must stipulate the compensation scheme for executive functions (although no reference is made to amount); and
  2. the amount payable for the discharge of executive functions must be included in the maximum annual amount stipulated by the shareholders’ meeting.

The judgment was handed down in connection with a limited liability company and, furthermore, some of its considerations refer specifically to unlisted companies, although it does not clearly and indubitably exclude listed companies (which are, however, subject to specific rules under the compensation policy).

The publication of this Supreme Court judgment gives rise to the need for an individualized analysis of each specific case, so that the appropriate measures can be taken to enable companies to bring their policies into line with its conclusions.

The author of this post is Pablo Vinageras.

Once convinced of the utility of mediation as a method of resolving conflicts between franchisor and franchisee and taken the decision to include a clause in the contracts that provides for it, the last step would be what elements should be taken into account when drafting it.

  1. The previous negotiation. It seems advisable that both parties grant themselves the possibility of trying to solve the problem with a previous formal negotiation. Mediation does not exclude the previous attempt made by the interested parties or their lawyers; however, it seems advisable to contractually provide a suitable end according to the circumstances. Experience shows that lengthening this phase too long may result in the conflict becoming more complicated and even more difficult to approach mediation.
  2. The clause may also provide for the place where the mediation will take place. Again at this point the parties are free. It is convenient that this is accurate indicating the concrete city.
  3. The language in which the mediation will be developed is the a faculty of the parties. There will be no difficulty in mediations in which both parties use the same language, but it is very convenient in contracts with parties that have different languages, or that belong to regions or countries with different co-official languages. The drafting or signing of the contract in a specific language does not presuppose that this must be the language of the mediation. It is an element to be taken into account also when requesting a mediator who can use that language in the chosen mediation institution.
  4. The procedure can also be decided by the parties. In particular, the number of sessions, the maximum expected duration, the participation of advisors, etc. Keep in mind that the greater or lesser regulation will allow to avoid future conflicts in this respect, although it will also imply a greater limit to the freedom of the parties that, nevertheless, will remain free to modify the agreement by mutual consent.
  5. The term of the mediation can also be contemplated. This would allow, for example, to prevent mediation from being extended only for purely procedural strategic purposes or to gather information from the other party before starting a procedure, etc. The professional mediators, however, are able to identify these manoeuvres, also having the power to put an end to mediation in those cases.
  6. Choosing the mediator or the mediation institution is an important choice. The parties can agree on who will be their mediator, indicate in the contract the elements to choose it, or submit directly to a Mediation Institution so that it is the one who designates it according to its own rules. These decisions can be alternatives (that is, that the parties agree on the mediator and, in case of lack of agreement, submit to an institution that names it), or they can be unique. The designation of an Institution requires that it has a sufficient guarantee of stability (avoid designating short-term institutions or without much future guarantee), with a sufficient panel of mediators depending on the characteristics of the mediation (language, competence, experience) and that allows the necessary flexibility for its operation.
  7. Finally, it is convenient that the clause includes an alternative way in case the mediation does not succeed either because the parties do not reach an agreement, or because they withdraw from the mediation. It is important to recall that mediation does not close the doors to the conflict be resolved by recourse to ordinary jurisdiction or arbitration. And in terms of specialized arbitration in distribution contracts, the IDArb (https://www.idiproject.com/content/idarb-idi-arbitration-project) is an excellent option.

On the topic of the importance of Mediation in Distribution Agreements, you can check out the recording our webinar “Mediation in International Conflicts”

Ignacio Alonso

业务领域

  • 代理中介
  • 公司法
  • 分销协议
  • 特许经营
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    Spain – Change to the legal treatment of Executive Directors’ compensation

    2018年6月7日

    • 西班牙
    • 公司法

    The Spanish Law of the Agency Contract and the European Directive provide for the agent -except in certain cases-, goodwill compensation (clientele) when the relationship is terminated, based on the remuneration received by the Agent during the life of the contract. It is, then, a burden that in general every Principal will have pending when the contract ends.

    The temptation is to try to get rid of that payment and for this clients consult us frequently about strategies or tactics. I will try to summarize some of them indicating the chances of success (or not) that may have, both in the negotiation / drafting phase of the contract, and in the resolution phase.

    1. Change the name of the contract

    The first idea is to make a contract “similar” to the agency or call it in a different way (services, intermediation, representation contracts…). However, the change of name does not have any incidence since the contracts “are what they are” and not what the parties call them. So if there is a continued mediation in exchange for remuneration, there is a good chance that a judge will consider it an agency contract, whatever we call it, and with all its consequences.

    1. Limitation of compensation in the contract

    Another temptation in the drafting phase of the contract is to agree compensation less than the maximum legally envisaged, provide for payment in advance for the duration of the contract, or directly eliminate it.

    None of these solutions would be valid if they try to reduce the possibility of the Agent to receive the legal maximum, or for reasons not foreseen in the Law or the Directive. The law is imperative.

    1. Linking different agency contracts

    Given that the compensation is calculated according to the remunerations of the last five years and the clientele created, the temptation is to link several shorter contracts to consider only the clients of the last period.

    This will not necessarily be a good idea if most of the customers were created last year for instance, but it may also be useless because the Spanish law and the Directive provide that the fixed-term contract that continues to be executed becomes indefinite. The judge may consider all linked contracts as one.

    For this strategy to have the possibility of being useful, it would be necessary to liquidate each substituted contract, declare that “nothing has to be claimed by the parties” and that the successive contracts are sufficiently separated and have different entities, drafting, extension, etc. If the procedure is well thought out, it could be a way to get rid of a greater indemnity by clientele: a well-written pact whereby the agent declares the compensation received, and the following contract does not mimic the content and immediately to the previous one.

    1. Submitting the agreement to a foreign law

    In international contracts the temptation is to submit the contract to a right that is not Spanish, particularly when the Principal has that citizenship.

    The idea can be good or bad according to the chosen law and as long as it has some relation with the business. As is known, in the EU the Directive establishes minimum conditions that national laws must respect. But nothing prevents these laws from providing more advantageous conditions for agents. This means that, for example, choosing French law would be, in general, a bad idea for the Principal because compensation in that country is usually higher.

    In some cases, the choice of a law outside the European Union that does not provide compensation for clientele when the agent is European has been rejected because that the minimum right recognized in the Directive has not been respected.

    1. Submit the contract to non-national rules and judges

    Another less frequent possibility is to submit the contract to rules not from a country, but to general commercial norms (Lex Mercatoria) and to agree on a lower compensation.

    This is very uncommon and may not be very useful depending on who is to interpret the contract and where the agent resides. If, for example, the agent resides in Spain and who is going to interpret the contract is a Spanish judge, he will most likely interpret the contract according to his/her own rules without being bound by what the contract envisages. This clause would have been useless.

    1. Submit the contract to arbitration

    The question will be different if the contract is subject to arbitration. In this case, arbitrators are not necessarily subject to interpreting a contract according to their own national regulations if the contract is subject to different one. In this case, it would be possible that they felt freer to consider the contract exclusively, especially when the agent was not of their nationality, did not know what the law of the agent’s country and was not bound by the guarantees provided for his protection.

    1. Mediation in the agency contract

    Mediation is an alternative dispute resolution system that can also be used in agency contracts. In mediation, the parties resolve the dispute by themselves with the help of a mediator.

    In this case, given that the mediator is not deciding, it is possible for the parties to freely reach an agreement whereby the agent agrees to a minor indemnification if, for example, other advantages are conferred upon him, if he comes to the conviction of having less right, difficulty of proof, if he prefers to save other costs, time, energy for your new business, etc.

    Mediators ensure the balance of the parties, but nothing prevents them to agree a compensation lower than the legal maximum (after the conclusion of the contract it is possible to negotiate a lower than the legal maximum). To foresee the possibility of mediation in the agency contract is, therefore, a good idea: this will permit the parties to better address and negotiate this compensation. In addition, providing for mediation does not limit the rights of any of the parties to withdraw and continue through the courts demanding the legal maximum.

    1. Imputing to the agent a previous breach

    When the contract ends, this is undoubtedly the cause that is most often attempted: when the contract is to be resolved, the Principal tries to argue that the Agent has previously failed to comply and that this is why the contract is being resolved.

    The law and the Directive exempt the payment of goodwill compensation when the agent has breach his obligations. But in that case, the Principal must be able to prove it when the agent discusses it. And it will not always be easy. The Principal must provide clear evidence and for this it will be convenient to collect information and documentation on the breach sufficiently and in advance and of sufficient importance (minor breaches are not usually accepted). Therefore, if the Principal wishes to follow this path it is advisable to prepare the arguments and evidences time before the agreement ends. It is strongly recommend contacting an expert advisor as soon as possible: he will help you to minimize the risks.

    The procedure to incorporate a foreign owned company in Spain is, in principle, easy and straight forward, however it is necessary to take into account certain new requirements derived from the tax and the anti-money laundering regulations, which could cause long delays in the incorporation process, even to EU and US companies, if they are not well advised and managed from the beginning of the procedure.

    The first step consist in collecting information about the foreign shareholder, in order to be able to prove its legal existence and activities: the foreign shareholder(s) will have to grant before a Notary Public in its country of residence a power of attorney authorising somebody in Spain to obtain its tax identification number (“NIE”), and also represent it before the Spanish notary when signing the deed of incorporation. In case the foreign shareholder is an individual person, the NIE should be applied for before the Spanish police or the Spanish Consulate at the country where the investor lives.

    If the shareholder is a corporation, apart from the Power of Attorney, it will have to obtain a certificate from its Companies’ Registry or Chamber of Commerce, stating its legal existence and main characteristics. This document is called “good standing certificate” (in the UK and US), “K-bis” (in France), “KvK” (in the Netherlands) or “visura” (in Italy). These two documents, the Power of Attorney mentioned in the above paragraph and the certificate from the Companies’ Registry, will have to be Apostilled or legalized by the correspondent Ministry, and Sworn translated into Spanish. Please note that we use to draft bilingual powers of attorney in order to avoid its sworn translation.

    The foreign shareholder will have to prove that its income is obtained from legal activities in order to be able to open a bank account in the name of the new company. The main document to prove this could be the Corporate or the Personal Income Tax return filed in its country of residence, but there could be other means, especially in case of individual persons.

    In case of a corporate shareholder, it will be necessary as well to declare, in principle through a public deed granted in Spain, who are the individual persons who, directly or through other companies, will hold more than a 25% interest in the new company to be incorporated. In case nobody holds more than a 25% (i.e. because there are 5 individual shareholders, holding each of them a 20%), it is declared that the effective control of the new company corresponds to its director.

    At this stage, it is also necessary to mention that the person(s) who will be the director(s) of the new company, in case they are foreigners, will also need to obtain their personal “NIE”. The NIE should be applied for before the Spanish police (this could be done by a proxy duly authorised though a Power of Attorney granted by the foreign director) or before the Spanish Consulate nearest to the city where the investor lives. In order to be a director of a Spanish company it is not necessary to be a shareholder, nor to have residence and work permit in Spain (provided the foreign director does not live in Spain).

    Meanwhile the necessary documents (Powers of Attorney, Companies’ Registry certificate, etc.) are being prepared by the foreign shareholder, the lawyer in Spain will apply for the new company’s name. It is advisable to point out that generic or usual names are not available quite often, therefore it is necessary to think in original names. Three different names could be applied for simultaneously.

    The drafting of the company’s Articles of Association or By Laws could be very quick, except if the company is going to have several shareholders and they wish specific clauses. In this case, it is also advisable to draft a Shareholders Agreement. The Shareholders’ Agreement could just contain some basic rules on dedication, compensation, non-competition, etc. and some more sophisticated rules on the sale of shares (tag along and drag along rights). As regards the By-Laws, they should mention the company’s name, its activity or activities, address in Spain –which cannot be just a P.O. Box-, share capital, number of shares and its face value, and starting date for the fiscal year, among other standard clauses.

    The management of the company could be organized through a sole director, two directors who could act jointly or separately, and in case there are more than three directors, they should organize themselves through a Board of Directors, being usual in this case to appoint a C.E.O. In order to be a director it is not necessary to be a shareholder. Under Spanish laws, the director(s) could be held liable for some company’s debts under certain circumstances which are legally defined. For this reason, it is necessary that the directors formally accept their appointment (personally appearing before the Notary or through a Power of Attorney).

    Before the incorporation, it will be necessary that either the new company’s director (the person to be appointed) or the representative of the corporate shareholder appears personally before the bank where the company will have its first bank account and signs the correspondent documents (KYC regulation). Once the bank account is opened, the shareholder will have to send a bank transfer for the new company’s share capital. In Spain, the minimum share capital for a limited company (S.L.) is Euros 3.000, while for a “Sociedad Anónima” (S.A.) it is Euros 60.000, but only 25% should be paid off at the incorporation moment. It is interesting to note that contributions to the share capital could be made in cash – which is the most common operation, especially at the incorporation – or in kind, with any type of assets: real estate, machinery, goods, trademarks, etc. The money for the share capital should be sent to the new company’s bank account from an account owned by the shareholder (or from each account owned by each shareholder, should they be several ones), not by any other different person. Once the Spanish bank receives the transfer, it will issue a certificate, which is necessary in order to incorporate the company.

    Once all the documents are ready, it is possible within very few days (almost immediately) to make the appointment with the Notary and sign the public deed of incorporation. This can be done at any notary in Spain, not being necessary that the notary practises at the same city where the company will have its corporate address. In order to summarize, the list of the necessary documents is:

    • Power(s) of Attorney granted by the foreign shareholder(s), apostilled and sworn translated.
    • Certificate regarding the legal existence of the foreign shareholder (only if it is a corporation), apostilled and sworn translated.
    • Statement on who are the last individual shareholders holding more than 25% interest in the new company, directly or indirectly (only in case of corporate shareholders).
    • NIE of the foreign shareholder(s).
    • NIE of the new company’s director(s), should they be a foreigners.
    • Certificate for the new company’s name.
    • Articles of Association.
    • Bank certificate regarding the contribution to the new company’s share capital.

    The deed of incorporation is signed by the proxy (or the individual shareholder(s), should they prefer to personally appear before the notary) before the chosen public notary, being also necessary to sign an official form to report the foreign investment to a public registry depending on the Spanish Ministry of Finance.

    Once the deed of incorporation is signed, the next steps consist in applying before the tax authorities to obtain the new company’s tax number (NIF / CIF) and filing the deed of incorporation before the Companies’ Registry. Some banks do allow new companies to operate once they have the NIF (which could be 2-3 days after the incorporation), while others request to wait until the deed of incorporation is filed at the Companies’ Registry (2-3 weeks).

    An estimation of the necessary time to complete all the procedure is 30-45 days, but of course the main delay is related to speed of the foreign investor in obtaining the necessary documents.

    Please note that if you wish to incorporate a foreign owned company in Spain it is always necessary to seek specific professional advice, as each case is different and regulations and the application of such regulations vary from time to time. The above article just explains the main steps and requirements for the incorporation of a company.

    Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

    It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

    And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

    The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

    The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

    1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

    Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

    1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
    2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
    3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
    4. Costs are reasonable and known in advance.
    5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

    西班牙企业家法 (第14/2013号法)准予了非欧盟国家的外国人可以通过执行投资获得西班牙的居留许可的条件：

    1. 房地产的投资金额等于或高于500,000欧元（五十万欧元）。投资可以在一个或多个房产中进行，但至少500,000欧元应该没有产权负担（抵押贷款，即）。如果价格高于500,000欧元，其余金额可以通过抵押支付。
    2. 金融投资金额等于或高于100万欧元。此类投资包括上市和非上市股票，如果是非上市股票，则可能来自已经运营的公司或新成立的股票，投资基金和西班牙银行的存款。
    3. 对西班牙主权债务的投资，金额等于或高于200万欧元。
    4. 在西班牙进行一项符合公共利益的商业项目。为此，应满足其中一个条件：创造就业机会，执行对其所在地区产生积极影响或对科学或技术创新作出相关贡献的投资。

    通过这种执行投资准予的签证至少有一年的效期。为了获得居住证，必须具备下列条件:

    • 年满十八岁
    • 没有犯罪前科
    • 有健康险(由在西班牙营业的公司聘用)
    • 拥有在西班牙居住的经济手段（即银行存款，或租赁或股息收入。工资单不符合此目的）。

    具备上述条件，可以准予两年居住和工作许可。两年后，居留许可可延长五年。

    在所有这些期间的投资都应该被保留。这个许可不需要外国人在西班牙居住超过六个月；因此，如果外国人居住在其他国家，这个许可也不会被取消。

    居住和工作许可证授予执行投资的个人。如果他/她已婚并且/或者有孩子或祖先依赖投资者，则可以同时或稍后申请签证。通过投资者拥有的公司可以执行投资，前提是该公司营业地不在免税区。

    西班牙居住许可证允许在欧盟国家（申根地区）内的自由流动。有效的旅行证件是护照。

    愿意在西班牙开展自营职业项目的外国人可以获得工作和居留许可，但通过与上述不同的程序。在这个情况下，最低投资额较低。

    房地产投资

    房地产投资可以涉及住宅，商业或工业产权。该产权可在收购前或收购后租赁给第三方，或由投资者使用。对于雄心勃勃的投资者而言，有几种可能性来构建对建筑物和公寓的投资以及更高的投资回报。

    相关房地产的收购需要支付一些费用：该收购按转让税征税，收购价格为6％至10％。税额具体取决于房产所在的每个西班牙地区，由买方支付。此外，买方应支付公证人和物业登记处的费用，这大约相当于收购价格的3％（两者相加）。购买财产时，这些金额一次支付。

    在西班牙房地产所有权相关的年度成本如下：

    • IBI或当地财产税，其金额根据物业的价值和地点计算。
    • “社区开支”，即与维护建筑物公共区域相关的费用：清洁，照明等。
    • 在某些情况下，还应向市议会支付小额垃圾税。
    • 如果房产未出租给第三方，业主应提交西班牙个人所得税申报表，并支付房产“地籍价值”（官方价值）的1,1％至2％。如果房产是租赁的，业主还应根据从租赁中获得的金额提交个人所得税申报表。

    此外，业主还应支付与其财产有关的费用：普通维护费，保险费，电费和水费等。

    在西班牙，产权被视为一项完全权利。业主可以自己使用该财产，可以将其出租给第三方，可以抵押，可以出售或赠送给任何第三方并且可以通过遗嘱继承给他的继承人。

    所有权人或由他指定的人使用财产的唯一限制是由公民规则确定的有关噪音、宠物、财产外部形象等。

    关于房产租赁，原则上是免费的，房东和房客的权利和义务是双方签订的私人租赁协议和西班牙城市租赁法（Ley de Arrendamientos Urbanos）提供的权利和义务。然而，如今许多西班牙城市（特别是巴塞罗那）已批准对所谓的旅游租赁进行强制限制，这些租约是短期（数天或数周）租约，并要求获得特别许可。

    需要指出的重要一点是获得西班牙居住许可证的外国人可以准予根据西班牙继承法（根据欧盟法规650/2012）授予他们的遗嘱。这些法律根据每个西班牙地区有不同。比如，在加泰罗尼亚立遗嘱者可以任命继承人。

    金融投资

    金融投资可以通过不同的目标执行，最低金额一百万欧元。

    • 在西班牙股票市场上市的公司股份。
    • 非上市公司的股份，可能是非上市公司经营公司或新成立的公司。 在这两种情况下，外国人可以拥有的股份比例没有限制，而非欧盟外国投资的活动部门很少（赌博，国防，航空，电视和广播）。 外国人可以被任命为西班牙公司的董事，唯一条件是先前获得所谓的“I.E.”，这是外国人的西班牙身份证号码。

    有新成立公司的情况下，要求投资的100万欧元将是公司的股本，并可用于公司的活动启动：例如，收购货物、支付工资和租金、支付供应商和分包商等

    西班牙公司进入欧洲市场，并且享有与拉美国家进行贸易的特权地位。

    • 投资基金：西班牙金融实体提供范围广泛的投资基金，从非常保守到高风险。

    银行存款

    房地产投资与金融投资相比，房地产投资的主要优势在于所要求的金额仅为房地产500,000欧元，而金融投资则为此金额的两倍。企业家法

    自“企业家法”生效以来，房地产投资一直是获得西班牙居留许可的最受欢迎的方式，可能是因为当时（2013-2016）房地产市场价格相当低,因为2008年的崩溃。

    然而,在西班牙购买房地产的过程与购买投资基金的股份或存入银行相比并不那么容易:投资者应该选择房地产(通常需要一次或两次访问西班牙)、价格和销售条件必须经过协商和起草，购买契约必须在公证人面前由投资者或其代理人签署，有与收购相关的税费和费用;购买房产地以后，就必须支付发生的费用和税款，并保持财产状况良好。

    与此相比，投资于资金或银行存款只需要投资者到银行一次，才能签署相关文件。没有相关的税收或费用，投资的流动性是充分的（即投资可以随时出售，很可能是以同样或更高的价格出售，但这对房地产投资没有保障）。

    如何在西班牙开设和经营银行账户

    在西班牙银行适用有关反洗钱的规定，其中包括KYC (了解你的客户Know Your Client)规则和证明基金合法来源的义务。KYC规则意味着投资者需要至少一次亲自出现在银行面前，在操作银行账户之前。资金的合法来源可以通过以下方式证明:

    • 有员工的情况下，通过工资单拆分，或雇主签发的证书，或投资者的个人所得税申报表。
    • 有自雇人士的情况下，通过个人所得税申报表或其他证明其专业活动的文件。
    • 有公司所有者的情况下，则通过公司的财务报表。
    • 如果投资者通过个人贷款获得了投资所需的资金，则应提供贷款协议，以及证明贷方提供资金合法来源的文件。
    • 可以提供其他文件，例如关于投资者拥有的房产租赁的股息或收入的文件。

    所有文件应由公证人或西班牙领事馆认证，并宣誓翻译成西班牙文。

    请您注意，本文章的目的是提供关于上述主题的西班牙法规则的一般概述，但本文的内容并不提供详尽的信息。做出任何决定之前，应该寻求法律咨询。

    In all M&A operations one of the issues that deserves special attention as regards its analysis, ascertainment and negotiation is the tax liabilities. Even though the parties could agree on the amount of such contingencies, to negotiate the possible guarantees that the seller should grant in order to protect the buyer from a possible claim by the tax authorities, the term during which the guarantees should be in force, and to agree on the communication mechanisms between the parties (buyer and seller) and the legal defense strategies if such claim from the tax authorities arises, requires substantial negotiation efforts.

    When the acquisition operation is formalized not through the purchase of shares, but through the purchase of the assets that form a business unit, the Spanish General Tax Law (“Ley General Tributaria” or “LGT”) provides a mechanism which implies an exception to the general principle provided by article 42 of the same law. Article 42 of LGT establishes the joint liability of the purchaser of a business unit for the tax liabilities of the selling company (“tax liability derived from company’s succession”). That is, in principle, according to article 42 of the LGT “the persons or entities that continue by any mean in the ownership or exercise of economic activities (the buyers) will be jointly liable with the previous owner for the tax liabilities derived from the exercise of such economic activities incurred by such previous owner”.

    However, the joint tax liability of the buyer could be limited through the application before the tax authorities of the tax certificate regulated by article 175.2 of the LGT. This certificate should be applied for by the prospective buyer, with the authorization of the present owner (the seller), and, once issued, the tax liability of the buyer becomes limited to the debts, penalties and liabilities mentioned in the certificate. If the certificate is issued without mentioning any amount, or if the tax authorities do not issue it within a three months term from the application’s date, the applicant (the buyer) will be released from any tax liability derived from company’s succession.

    The tax certificate for succession purposes includes the main taxes, as Value Added Tax and Corporate Income Tax, and can include as well debts derived from the withholding taxes on employees’ payroll, which in case of companies with a big number of employees could be of an outstanding amount. However, the buyer’s joint liability for salaries, related payroll amounts and social security contributions cannot be limited by such certificate, and such liability will always be joint with the business unit seller’s liability.

    The application for the tax certificate should be filed before the acquisition of the business unit is completed, even if the issuance of the certificate takes place later tan the closing date (but of course, it is wiser to not close the acquisition before having the certificate). The certificate’s validity lasts for one year, as regards periodical tax obligations (for example, Value Added Tax, Corporate Income Tax and withholding taxes on salaries) and for three months as regards non periodical tax obligations.

    It is very important to apply for the right tax certificate (“certificate for succession purposes according to article 175.2 of LGT”), and to not make a mistake and apply, for example, for the certificate regarding having fulfilled all tax obligations (“certificado de estar al corriente de las obligaciones fiscales”). Case law is plenty of judgments where a buyer applied for the wrong certificate, which showed no liabilities, and later on such buyer has been sentenced to pay the tax liabilities incurred by the previous owner of the business unit.

    根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

    然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

    到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

    最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

    然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

    这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

    在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

    在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

    The remuneration of directors is an intricate issue and one that deserves adequate treatment. Recently there has been a turn that deserves special attention.

    In its judgment of February 26, 2018, the Supreme Court modified the interpretation given by most experts and authorities and by the Directorate-General of Registries and the Notarial Profession in its decision dated June 17, 2016, ratified by the Barcelona Provincial Appellate Court in its decision 295/2017 of June 30, 2017, on the regulation of executive directors’ compensation.

    In its judgment, the Supreme Court held that the compensation of directors “in their capacity as such” includes the compensation of both deliberative and executive functions and that, accordingly, approval of the compensation of directors who discharge executive functions is subject not only to article 249 of the Corporate Enterprises Law (i.e., the requirement for there to be a contract approved by a two-thirds majority of the board) but also to article 217. Consequently:

    1. the bylaws must stipulate the compensation scheme for executive functions (although no reference is made to amount); and
    2. the amount payable for the discharge of executive functions must be included in the maximum annual amount stipulated by the shareholders’ meeting.

    The judgment was handed down in connection with a limited liability company and, furthermore, some of its considerations refer specifically to unlisted companies, although it does not clearly and indubitably exclude listed companies (which are, however, subject to specific rules under the compensation policy).

    The publication of this Supreme Court judgment gives rise to the need for an individualized analysis of each specific case, so that the appropriate measures can be taken to enable companies to bring their policies into line with its conclusions.

    The author of this post is Pablo Vinageras.

    Once convinced of the utility of mediation as a method of resolving conflicts between franchisor and franchisee and taken the decision to include a clause in the contracts that provides for it, the last step would be what elements should be taken into account when drafting it.

    1. The previous negotiation. It seems advisable that both parties grant themselves the possibility of trying to solve the problem with a previous formal negotiation. Mediation does not exclude the previous attempt made by the interested parties or their lawyers; however, it seems advisable to contractually provide a suitable end according to the circumstances. Experience shows that lengthening this phase too long may result in the conflict becoming more complicated and even more difficult to approach mediation.
    2. The clause may also provide for the place where the mediation will take place. Again at this point the parties are free. It is convenient that this is accurate indicating the concrete city.
    3. The language in which the mediation will be developed is the a faculty of the parties. There will be no difficulty in mediations in which both parties use the same language, but it is very convenient in contracts with parties that have different languages, or that belong to regions or countries with different co-official languages. The drafting or signing of the contract in a specific language does not presuppose that this must be the language of the mediation. It is an element to be taken into account also when requesting a mediator who can use that language in the chosen mediation institution.
    4. The procedure can also be decided by the parties. In particular, the number of sessions, the maximum expected duration, the participation of advisors, etc. Keep in mind that the greater or lesser regulation will allow to avoid future conflicts in this respect, although it will also imply a greater limit to the freedom of the parties that, nevertheless, will remain free to modify the agreement by mutual consent.
    5. The term of the mediation can also be contemplated. This would allow, for example, to prevent mediation from being extended only for purely procedural strategic purposes or to gather information from the other party before starting a procedure, etc. The professional mediators, however, are able to identify these manoeuvres, also having the power to put an end to mediation in those cases.
    6. Choosing the mediator or the mediation institution is an important choice. The parties can agree on who will be their mediator, indicate in the contract the elements to choose it, or submit directly to a Mediation Institution so that it is the one who designates it according to its own rules. These decisions can be alternatives (that is, that the parties agree on the mediator and, in case of lack of agreement, submit to an institution that names it), or they can be unique. The designation of an Institution requires that it has a sufficient guarantee of stability (avoid designating short-term institutions or without much future guarantee), with a sufficient panel of mediators depending on the characteristics of the mediation (language, competence, experience) and that allows the necessary flexibility for its operation.
    7. Finally, it is convenient that the clause includes an alternative way in case the mediation does not succeed either because the parties do not reach an agreement, or because they withdraw from the mediation. It is important to recall that mediation does not close the doors to the conflict be resolved by recourse to ordinary jurisdiction or arbitration. And in terms of specialized arbitration in distribution contracts, the IDArb (https://www.idiproject.com/content/idarb-idi-arbitration-project) is an excellent option.

    On the topic of the importance of Mediation in Distribution Agreements, you can check out the recording our webinar “Mediation in International Conflicts”

    Drafting the mediation clause in franchise agreements

    2018年5月31日

    • 西班牙
    • 分销协议
    • 特许经营

    The Spanish Law of the Agency Contract and the European Directive provide for the agent -except in certain cases-, goodwill compensation (clientele) when the relationship is terminated, based on the remuneration received by the Agent during the life of the contract. It is, then, a burden that in general every Principal will have pending when the contract ends.

    The temptation is to try to get rid of that payment and for this clients consult us frequently about strategies or tactics. I will try to summarize some of them indicating the chances of success (or not) that may have, both in the negotiation / drafting phase of the contract, and in the resolution phase.

    1. Change the name of the contract

    The first idea is to make a contract “similar” to the agency or call it in a different way (services, intermediation, representation contracts…). However, the change of name does not have any incidence since the contracts “are what they are” and not what the parties call them. So if there is a continued mediation in exchange for remuneration, there is a good chance that a judge will consider it an agency contract, whatever we call it, and with all its consequences.

    1. Limitation of compensation in the contract

    Another temptation in the drafting phase of the contract is to agree compensation less than the maximum legally envisaged, provide for payment in advance for the duration of the contract, or directly eliminate it.

    None of these solutions would be valid if they try to reduce the possibility of the Agent to receive the legal maximum, or for reasons not foreseen in the Law or the Directive. The law is imperative.

    1. Linking different agency contracts

    Given that the compensation is calculated according to the remunerations of the last five years and the clientele created, the temptation is to link several shorter contracts to consider only the clients of the last period.

    This will not necessarily be a good idea if most of the customers were created last year for instance, but it may also be useless because the Spanish law and the Directive provide that the fixed-term contract that continues to be executed becomes indefinite. The judge may consider all linked contracts as one.

    For this strategy to have the possibility of being useful, it would be necessary to liquidate each substituted contract, declare that “nothing has to be claimed by the parties” and that the successive contracts are sufficiently separated and have different entities, drafting, extension, etc. If the procedure is well thought out, it could be a way to get rid of a greater indemnity by clientele: a well-written pact whereby the agent declares the compensation received, and the following contract does not mimic the content and immediately to the previous one.

    1. Submitting the agreement to a foreign law

    In international contracts the temptation is to submit the contract to a right that is not Spanish, particularly when the Principal has that citizenship.

    The idea can be good or bad according to the chosen law and as long as it has some relation with the business. As is known, in the EU the Directive establishes minimum conditions that national laws must respect. But nothing prevents these laws from providing more advantageous conditions for agents. This means that, for example, choosing French law would be, in general, a bad idea for the Principal because compensation in that country is usually higher.

    In some cases, the choice of a law outside the European Union that does not provide compensation for clientele when the agent is European has been rejected because that the minimum right recognized in the Directive has not been respected.

    1. Submit the contract to non-national rules and judges

    Another less frequent possibility is to submit the contract to rules not from a country, but to general commercial norms (Lex Mercatoria) and to agree on a lower compensation.

    This is very uncommon and may not be very useful depending on who is to interpret the contract and where the agent resides. If, for example, the agent resides in Spain and who is going to interpret the contract is a Spanish judge, he will most likely interpret the contract according to his/her own rules without being bound by what the contract envisages. This clause would have been useless.

    1. Submit the contract to arbitration

    The question will be different if the contract is subject to arbitration. In this case, arbitrators are not necessarily subject to interpreting a contract according to their own national regulations if the contract is subject to different one. In this case, it would be possible that they felt freer to consider the contract exclusively, especially when the agent was not of their nationality, did not know what the law of the agent’s country and was not bound by the guarantees provided for his protection.

    1. Mediation in the agency contract

    Mediation is an alternative dispute resolution system that can also be used in agency contracts. In mediation, the parties resolve the dispute by themselves with the help of a mediator.

    In this case, given that the mediator is not deciding, it is possible for the parties to freely reach an agreement whereby the agent agrees to a minor indemnification if, for example, other advantages are conferred upon him, if he comes to the conviction of having less right, difficulty of proof, if he prefers to save other costs, time, energy for your new business, etc.

    Mediators ensure the balance of the parties, but nothing prevents them to agree a compensation lower than the legal maximum (after the conclusion of the contract it is possible to negotiate a lower than the legal maximum). To foresee the possibility of mediation in the agency contract is, therefore, a good idea: this will permit the parties to better address and negotiate this compensation. In addition, providing for mediation does not limit the rights of any of the parties to withdraw and continue through the courts demanding the legal maximum.

    1. Imputing to the agent a previous breach

    When the contract ends, this is undoubtedly the cause that is most often attempted: when the contract is to be resolved, the Principal tries to argue that the Agent has previously failed to comply and that this is why the contract is being resolved.

    The law and the Directive exempt the payment of goodwill compensation when the agent has breach his obligations. But in that case, the Principal must be able to prove it when the agent discusses it. And it will not always be easy. The Principal must provide clear evidence and for this it will be convenient to collect information and documentation on the breach sufficiently and in advance and of sufficient importance (minor breaches are not usually accepted). Therefore, if the Principal wishes to follow this path it is advisable to prepare the arguments and evidences time before the agreement ends. It is strongly recommend contacting an expert advisor as soon as possible: he will help you to minimize the risks.

    The procedure to incorporate a foreign owned company in Spain is, in principle, easy and straight forward, however it is necessary to take into account certain new requirements derived from the tax and the anti-money laundering regulations, which could cause long delays in the incorporation process, even to EU and US companies, if they are not well advised and managed from the beginning of the procedure.

    The first step consist in collecting information about the foreign shareholder, in order to be able to prove its legal existence and activities: the foreign shareholder(s) will have to grant before a Notary Public in its country of residence a power of attorney authorising somebody in Spain to obtain its tax identification number (“NIE”), and also represent it before the Spanish notary when signing the deed of incorporation. In case the foreign shareholder is an individual person, the NIE should be applied for before the Spanish police or the Spanish Consulate at the country where the investor lives.

    If the shareholder is a corporation, apart from the Power of Attorney, it will have to obtain a certificate from its Companies’ Registry or Chamber of Commerce, stating its legal existence and main characteristics. This document is called “good standing certificate” (in the UK and US), “K-bis” (in France), “KvK” (in the Netherlands) or “visura” (in Italy). These two documents, the Power of Attorney mentioned in the above paragraph and the certificate from the Companies’ Registry, will have to be Apostilled or legalized by the correspondent Ministry, and Sworn translated into Spanish. Please note that we use to draft bilingual powers of attorney in order to avoid its sworn translation.

    The foreign shareholder will have to prove that its income is obtained from legal activities in order to be able to open a bank account in the name of the new company. The main document to prove this could be the Corporate or the Personal Income Tax return filed in its country of residence, but there could be other means, especially in case of individual persons.

    In case of a corporate shareholder, it will be necessary as well to declare, in principle through a public deed granted in Spain, who are the individual persons who, directly or through other companies, will hold more than a 25% interest in the new company to be incorporated. In case nobody holds more than a 25% (i.e. because there are 5 individual shareholders, holding each of them a 20%), it is declared that the effective control of the new company corresponds to its director.

    At this stage, it is also necessary to mention that the person(s) who will be the director(s) of the new company, in case they are foreigners, will also need to obtain their personal “NIE”. The NIE should be applied for before the Spanish police (this could be done by a proxy duly authorised though a Power of Attorney granted by the foreign director) or before the Spanish Consulate nearest to the city where the investor lives. In order to be a director of a Spanish company it is not necessary to be a shareholder, nor to have residence and work permit in Spain (provided the foreign director does not live in Spain).

    Meanwhile the necessary documents (Powers of Attorney, Companies’ Registry certificate, etc.) are being prepared by the foreign shareholder, the lawyer in Spain will apply for the new company’s name. It is advisable to point out that generic or usual names are not available quite often, therefore it is necessary to think in original names. Three different names could be applied for simultaneously.

    The drafting of the company’s Articles of Association or By Laws could be very quick, except if the company is going to have several shareholders and they wish specific clauses. In this case, it is also advisable to draft a Shareholders Agreement. The Shareholders’ Agreement could just contain some basic rules on dedication, compensation, non-competition, etc. and some more sophisticated rules on the sale of shares (tag along and drag along rights). As regards the By-Laws, they should mention the company’s name, its activity or activities, address in Spain –which cannot be just a P.O. Box-, share capital, number of shares and its face value, and starting date for the fiscal year, among other standard clauses.

    The management of the company could be organized through a sole director, two directors who could act jointly or separately, and in case there are more than three directors, they should organize themselves through a Board of Directors, being usual in this case to appoint a C.E.O. In order to be a director it is not necessary to be a shareholder. Under Spanish laws, the director(s) could be held liable for some company’s debts under certain circumstances which are legally defined. For this reason, it is necessary that the directors formally accept their appointment (personally appearing before the Notary or through a Power of Attorney).

    Before the incorporation, it will be necessary that either the new company’s director (the person to be appointed) or the representative of the corporate shareholder appears personally before the bank where the company will have its first bank account and signs the correspondent documents (KYC regulation). Once the bank account is opened, the shareholder will have to send a bank transfer for the new company’s share capital. In Spain, the minimum share capital for a limited company (S.L.) is Euros 3.000, while for a “Sociedad Anónima” (S.A.) it is Euros 60.000, but only 25% should be paid off at the incorporation moment. It is interesting to note that contributions to the share capital could be made in cash – which is the most common operation, especially at the incorporation – or in kind, with any type of assets: real estate, machinery, goods, trademarks, etc. The money for the share capital should be sent to the new company’s bank account from an account owned by the shareholder (or from each account owned by each shareholder, should they be several ones), not by any other different person. Once the Spanish bank receives the transfer, it will issue a certificate, which is necessary in order to incorporate the company.

    Once all the documents are ready, it is possible within very few days (almost immediately) to make the appointment with the Notary and sign the public deed of incorporation. This can be done at any notary in Spain, not being necessary that the notary practises at the same city where the company will have its corporate address. In order to summarize, the list of the necessary documents is:

    • Power(s) of Attorney granted by the foreign shareholder(s), apostilled and sworn translated.
    • Certificate regarding the legal existence of the foreign shareholder (only if it is a corporation), apostilled and sworn translated.
    • Statement on who are the last individual shareholders holding more than 25% interest in the new company, directly or indirectly (only in case of corporate shareholders).
    • NIE of the foreign shareholder(s).
    • NIE of the new company’s director(s), should they be a foreigners.
    • Certificate for the new company’s name.
    • Articles of Association.
    • Bank certificate regarding the contribution to the new company’s share capital.

    The deed of incorporation is signed by the proxy (or the individual shareholder(s), should they prefer to personally appear before the notary) before the chosen public notary, being also necessary to sign an official form to report the foreign investment to a public registry depending on the Spanish Ministry of Finance.

    Once the deed of incorporation is signed, the next steps consist in applying before the tax authorities to obtain the new company’s tax number (NIF / CIF) and filing the deed of incorporation before the Companies’ Registry. Some banks do allow new companies to operate once they have the NIF (which could be 2-3 days after the incorporation), while others request to wait until the deed of incorporation is filed at the Companies’ Registry (2-3 weeks).

    An estimation of the necessary time to complete all the procedure is 30-45 days, but of course the main delay is related to speed of the foreign investor in obtaining the necessary documents.

    Please note that if you wish to incorporate a foreign owned company in Spain it is always necessary to seek specific professional advice, as each case is different and regulations and the application of such regulations vary from time to time. The above article just explains the main steps and requirements for the incorporation of a company.

    Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

    It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

    And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

    The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

    The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

    1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

    Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

    1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
    2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
    3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
    4. Costs are reasonable and known in advance.
    5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

    西班牙企业家法 (第14/2013号法)准予了非欧盟国家的外国人可以通过执行投资获得西班牙的居留许可的条件：

    1. 房地产的投资金额等于或高于500,000欧元（五十万欧元）。投资可以在一个或多个房产中进行，但至少500,000欧元应该没有产权负担（抵押贷款，即）。如果价格高于500,000欧元，其余金额可以通过抵押支付。
    2. 金融投资金额等于或高于100万欧元。此类投资包括上市和非上市股票，如果是非上市股票，则可能来自已经运营的公司或新成立的股票，投资基金和西班牙银行的存款。
    3. 对西班牙主权债务的投资，金额等于或高于200万欧元。
    4. 在西班牙进行一项符合公共利益的商业项目。为此，应满足其中一个条件：创造就业机会，执行对其所在地区产生积极影响或对科学或技术创新作出相关贡献的投资。

    通过这种执行投资准予的签证至少有一年的效期。为了获得居住证，必须具备下列条件:

    • 年满十八岁
    • 没有犯罪前科
    • 有健康险(由在西班牙营业的公司聘用)
    • 拥有在西班牙居住的经济手段（即银行存款，或租赁或股息收入。工资单不符合此目的）。

    具备上述条件，可以准予两年居住和工作许可。两年后，居留许可可延长五年。

    在所有这些期间的投资都应该被保留。这个许可不需要外国人在西班牙居住超过六个月；因此，如果外国人居住在其他国家，这个许可也不会被取消。

    居住和工作许可证授予执行投资的个人。如果他/她已婚并且/或者有孩子或祖先依赖投资者，则可以同时或稍后申请签证。通过投资者拥有的公司可以执行投资，前提是该公司营业地不在免税区。

    西班牙居住许可证允许在欧盟国家（申根地区）内的自由流动。有效的旅行证件是护照。

    愿意在西班牙开展自营职业项目的外国人可以获得工作和居留许可，但通过与上述不同的程序。在这个情况下，最低投资额较低。

    房地产投资

    房地产投资可以涉及住宅，商业或工业产权。该产权可在收购前或收购后租赁给第三方，或由投资者使用。对于雄心勃勃的投资者而言，有几种可能性来构建对建筑物和公寓的投资以及更高的投资回报。

    相关房地产的收购需要支付一些费用：该收购按转让税征税，收购价格为6％至10％。税额具体取决于房产所在的每个西班牙地区，由买方支付。此外，买方应支付公证人和物业登记处的费用，这大约相当于收购价格的3％（两者相加）。购买财产时，这些金额一次支付。

    在西班牙房地产所有权相关的年度成本如下：

    • IBI或当地财产税，其金额根据物业的价值和地点计算。
    • “社区开支”，即与维护建筑物公共区域相关的费用：清洁，照明等。
    • 在某些情况下，还应向市议会支付小额垃圾税。
    • 如果房产未出租给第三方，业主应提交西班牙个人所得税申报表，并支付房产“地籍价值”（官方价值）的1,1％至2％。如果房产是租赁的，业主还应根据从租赁中获得的金额提交个人所得税申报表。

    此外，业主还应支付与其财产有关的费用：普通维护费，保险费，电费和水费等。

    在西班牙，产权被视为一项完全权利。业主可以自己使用该财产，可以将其出租给第三方，可以抵押，可以出售或赠送给任何第三方并且可以通过遗嘱继承给他的继承人。

    所有权人或由他指定的人使用财产的唯一限制是由公民规则确定的有关噪音、宠物、财产外部形象等。

    关于房产租赁，原则上是免费的，房东和房客的权利和义务是双方签订的私人租赁协议和西班牙城市租赁法（Ley de Arrendamientos Urbanos）提供的权利和义务。然而，如今许多西班牙城市（特别是巴塞罗那）已批准对所谓的旅游租赁进行强制限制，这些租约是短期（数天或数周）租约，并要求获得特别许可。

    需要指出的重要一点是获得西班牙居住许可证的外国人可以准予根据西班牙继承法（根据欧盟法规650/2012）授予他们的遗嘱。这些法律根据每个西班牙地区有不同。比如，在加泰罗尼亚立遗嘱者可以任命继承人。

    金融投资

    金融投资可以通过不同的目标执行，最低金额一百万欧元。

    • 在西班牙股票市场上市的公司股份。
    • 非上市公司的股份，可能是非上市公司经营公司或新成立的公司。 在这两种情况下，外国人可以拥有的股份比例没有限制，而非欧盟外国投资的活动部门很少（赌博，国防，航空，电视和广播）。 外国人可以被任命为西班牙公司的董事，唯一条件是先前获得所谓的“I.E.”，这是外国人的西班牙身份证号码。

    有新成立公司的情况下，要求投资的100万欧元将是公司的股本，并可用于公司的活动启动：例如，收购货物、支付工资和租金、支付供应商和分包商等

    西班牙公司进入欧洲市场，并且享有与拉美国家进行贸易的特权地位。

    • 投资基金：西班牙金融实体提供范围广泛的投资基金，从非常保守到高风险。

    银行存款

    房地产投资与金融投资相比，房地产投资的主要优势在于所要求的金额仅为房地产500,000欧元，而金融投资则为此金额的两倍。企业家法

    自“企业家法”生效以来，房地产投资一直是获得西班牙居留许可的最受欢迎的方式，可能是因为当时（2013-2016）房地产市场价格相当低,因为2008年的崩溃。

    然而,在西班牙购买房地产的过程与购买投资基金的股份或存入银行相比并不那么容易:投资者应该选择房地产(通常需要一次或两次访问西班牙)、价格和销售条件必须经过协商和起草，购买契约必须在公证人面前由投资者或其代理人签署，有与收购相关的税费和费用;购买房产地以后，就必须支付发生的费用和税款，并保持财产状况良好。

    与此相比，投资于资金或银行存款只需要投资者到银行一次，才能签署相关文件。没有相关的税收或费用，投资的流动性是充分的（即投资可以随时出售，很可能是以同样或更高的价格出售，但这对房地产投资没有保障）。

    如何在西班牙开设和经营银行账户

    在西班牙银行适用有关反洗钱的规定，其中包括KYC (了解你的客户Know Your Client)规则和证明基金合法来源的义务。KYC规则意味着投资者需要至少一次亲自出现在银行面前，在操作银行账户之前。资金的合法来源可以通过以下方式证明:

    • 有员工的情况下，通过工资单拆分，或雇主签发的证书，或投资者的个人所得税申报表。
    • 有自雇人士的情况下，通过个人所得税申报表或其他证明其专业活动的文件。
    • 有公司所有者的情况下，则通过公司的财务报表。
    • 如果投资者通过个人贷款获得了投资所需的资金，则应提供贷款协议，以及证明贷方提供资金合法来源的文件。
    • 可以提供其他文件，例如关于投资者拥有的房产租赁的股息或收入的文件。

    所有文件应由公证人或西班牙领事馆认证，并宣誓翻译成西班牙文。

    请您注意，本文章的目的是提供关于上述主题的西班牙法规则的一般概述，但本文的内容并不提供详尽的信息。做出任何决定之前，应该寻求法律咨询。

    In all M&A operations one of the issues that deserves special attention as regards its analysis, ascertainment and negotiation is the tax liabilities. Even though the parties could agree on the amount of such contingencies, to negotiate the possible guarantees that the seller should grant in order to protect the buyer from a possible claim by the tax authorities, the term during which the guarantees should be in force, and to agree on the communication mechanisms between the parties (buyer and seller) and the legal defense strategies if such claim from the tax authorities arises, requires substantial negotiation efforts.

    When the acquisition operation is formalized not through the purchase of shares, but through the purchase of the assets that form a business unit, the Spanish General Tax Law (“Ley General Tributaria” or “LGT”) provides a mechanism which implies an exception to the general principle provided by article 42 of the same law. Article 42 of LGT establishes the joint liability of the purchaser of a business unit for the tax liabilities of the selling company (“tax liability derived from company’s succession”). That is, in principle, according to article 42 of the LGT “the persons or entities that continue by any mean in the ownership or exercise of economic activities (the buyers) will be jointly liable with the previous owner for the tax liabilities derived from the exercise of such economic activities incurred by such previous owner”.

    However, the joint tax liability of the buyer could be limited through the application before the tax authorities of the tax certificate regulated by article 175.2 of the LGT. This certificate should be applied for by the prospective buyer, with the authorization of the present owner (the seller), and, once issued, the tax liability of the buyer becomes limited to the debts, penalties and liabilities mentioned in the certificate. If the certificate is issued without mentioning any amount, or if the tax authorities do not issue it within a three months term from the application’s date, the applicant (the buyer) will be released from any tax liability derived from company’s succession.

    The tax certificate for succession purposes includes the main taxes, as Value Added Tax and Corporate Income Tax, and can include as well debts derived from the withholding taxes on employees’ payroll, which in case of companies with a big number of employees could be of an outstanding amount. However, the buyer’s joint liability for salaries, related payroll amounts and social security contributions cannot be limited by such certificate, and such liability will always be joint with the business unit seller’s liability.

    The application for the tax certificate should be filed before the acquisition of the business unit is completed, even if the issuance of the certificate takes place later tan the closing date (but of course, it is wiser to not close the acquisition before having the certificate). The certificate’s validity lasts for one year, as regards periodical tax obligations (for example, Value Added Tax, Corporate Income Tax and withholding taxes on salaries) and for three months as regards non periodical tax obligations.

    It is very important to apply for the right tax certificate (“certificate for succession purposes according to article 175.2 of LGT”), and to not make a mistake and apply, for example, for the certificate regarding having fulfilled all tax obligations (“certificado de estar al corriente de las obligaciones fiscales”). Case law is plenty of judgments where a buyer applied for the wrong certificate, which showed no liabilities, and later on such buyer has been sentenced to pay the tax liabilities incurred by the previous owner of the business unit.

    根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

    然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

    到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

    最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

    然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

    这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

    在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

    在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

    The remuneration of directors is an intricate issue and one that deserves adequate treatment. Recently there has been a turn that deserves special attention.

    In its judgment of February 26, 2018, the Supreme Court modified the interpretation given by most experts and authorities and by the Directorate-General of Registries and the Notarial Profession in its decision dated June 17, 2016, ratified by the Barcelona Provincial Appellate Court in its decision 295/2017 of June 30, 2017, on the regulation of executive directors’ compensation.

    In its judgment, the Supreme Court held that the compensation of directors “in their capacity as such” includes the compensation of both deliberative and executive functions and that, accordingly, approval of the compensation of directors who discharge executive functions is subject not only to article 249 of the Corporate Enterprises Law (i.e., the requirement for there to be a contract approved by a two-thirds majority of the board) but also to article 217. Consequently:

    1. the bylaws must stipulate the compensation scheme for executive functions (although no reference is made to amount); and
    2. the amount payable for the discharge of executive functions must be included in the maximum annual amount stipulated by the shareholders’ meeting.

    The judgment was handed down in connection with a limited liability company and, furthermore, some of its considerations refer specifically to unlisted companies, although it does not clearly and indubitably exclude listed companies (which are, however, subject to specific rules under the compensation policy).

    The publication of this Supreme Court judgment gives rise to the need for an individualized analysis of each specific case, so that the appropriate measures can be taken to enable companies to bring their policies into line with its conclusions.

    The author of this post is Pablo Vinageras.

    Once convinced of the utility of mediation as a method of resolving conflicts between franchisor and franchisee and taken the decision to include a clause in the contracts that provides for it, the last step would be what elements should be taken into account when drafting it.

    1. The previous negotiation. It seems advisable that both parties grant themselves the possibility of trying to solve the problem with a previous formal negotiation. Mediation does not exclude the previous attempt made by the interested parties or their lawyers; however, it seems advisable to contractually provide a suitable end according to the circumstances. Experience shows that lengthening this phase too long may result in the conflict becoming more complicated and even more difficult to approach mediation.
    2. The clause may also provide for the place where the mediation will take place. Again at this point the parties are free. It is convenient that this is accurate indicating the concrete city.
    3. The language in which the mediation will be developed is the a faculty of the parties. There will be no difficulty in mediations in which both parties use the same language, but it is very convenient in contracts with parties that have different languages, or that belong to regions or countries with different co-official languages. The drafting or signing of the contract in a specific language does not presuppose that this must be the language of the mediation. It is an element to be taken into account also when requesting a mediator who can use that language in the chosen mediation institution.
    4. The procedure can also be decided by the parties. In particular, the number of sessions, the maximum expected duration, the participation of advisors, etc. Keep in mind that the greater or lesser regulation will allow to avoid future conflicts in this respect, although it will also imply a greater limit to the freedom of the parties that, nevertheless, will remain free to modify the agreement by mutual consent.
    5. The term of the mediation can also be contemplated. This would allow, for example, to prevent mediation from being extended only for purely procedural strategic purposes or to gather information from the other party before starting a procedure, etc. The professional mediators, however, are able to identify these manoeuvres, also having the power to put an end to mediation in those cases.
    6. Choosing the mediator or the mediation institution is an important choice. The parties can agree on who will be their mediator, indicate in the contract the elements to choose it, or submit directly to a Mediation Institution so that it is the one who designates it according to its own rules. These decisions can be alternatives (that is, that the parties agree on the mediator and, in case of lack of agreement, submit to an institution that names it), or they can be unique. The designation of an Institution requires that it has a sufficient guarantee of stability (avoid designating short-term institutions or without much future guarantee), with a sufficient panel of mediators depending on the characteristics of the mediation (language, competence, experience) and that allows the necessary flexibility for its operation.
    7. Finally, it is convenient that the clause includes an alternative way in case the mediation does not succeed either because the parties do not reach an agreement, or because they withdraw from the mediation. It is important to recall that mediation does not close the doors to the conflict be resolved by recourse to ordinary jurisdiction or arbitration. And in terms of specialized arbitration in distribution contracts, the IDArb (https://www.idiproject.com/content/idarb-idi-arbitration-project) is an excellent option.

    On the topic of the importance of Mediation in Distribution Agreements, you can check out the recording our webinar “Mediation in International Conflicts”

    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





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      Mediation and franchise agreements – best practices

      2018年5月3日

      • 西班牙
      • 分销协议
      • 特许经营

      The Spanish Law of the Agency Contract and the European Directive provide for the agent -except in certain cases-, goodwill compensation (clientele) when the relationship is terminated, based on the remuneration received by the Agent during the life of the contract. It is, then, a burden that in general every Principal will have pending when the contract ends.

      The temptation is to try to get rid of that payment and for this clients consult us frequently about strategies or tactics. I will try to summarize some of them indicating the chances of success (or not) that may have, both in the negotiation / drafting phase of the contract, and in the resolution phase.

      1. Change the name of the contract

      The first idea is to make a contract “similar” to the agency or call it in a different way (services, intermediation, representation contracts…). However, the change of name does not have any incidence since the contracts “are what they are” and not what the parties call them. So if there is a continued mediation in exchange for remuneration, there is a good chance that a judge will consider it an agency contract, whatever we call it, and with all its consequences.

      1. Limitation of compensation in the contract

      Another temptation in the drafting phase of the contract is to agree compensation less than the maximum legally envisaged, provide for payment in advance for the duration of the contract, or directly eliminate it.

      None of these solutions would be valid if they try to reduce the possibility of the Agent to receive the legal maximum, or for reasons not foreseen in the Law or the Directive. The law is imperative.

      1. Linking different agency contracts

      Given that the compensation is calculated according to the remunerations of the last five years and the clientele created, the temptation is to link several shorter contracts to consider only the clients of the last period.

      This will not necessarily be a good idea if most of the customers were created last year for instance, but it may also be useless because the Spanish law and the Directive provide that the fixed-term contract that continues to be executed becomes indefinite. The judge may consider all linked contracts as one.

      For this strategy to have the possibility of being useful, it would be necessary to liquidate each substituted contract, declare that “nothing has to be claimed by the parties” and that the successive contracts are sufficiently separated and have different entities, drafting, extension, etc. If the procedure is well thought out, it could be a way to get rid of a greater indemnity by clientele: a well-written pact whereby the agent declares the compensation received, and the following contract does not mimic the content and immediately to the previous one.

      1. Submitting the agreement to a foreign law

      In international contracts the temptation is to submit the contract to a right that is not Spanish, particularly when the Principal has that citizenship.

      The idea can be good or bad according to the chosen law and as long as it has some relation with the business. As is known, in the EU the Directive establishes minimum conditions that national laws must respect. But nothing prevents these laws from providing more advantageous conditions for agents. This means that, for example, choosing French law would be, in general, a bad idea for the Principal because compensation in that country is usually higher.

      In some cases, the choice of a law outside the European Union that does not provide compensation for clientele when the agent is European has been rejected because that the minimum right recognized in the Directive has not been respected.

      1. Submit the contract to non-national rules and judges

      Another less frequent possibility is to submit the contract to rules not from a country, but to general commercial norms (Lex Mercatoria) and to agree on a lower compensation.

      This is very uncommon and may not be very useful depending on who is to interpret the contract and where the agent resides. If, for example, the agent resides in Spain and who is going to interpret the contract is a Spanish judge, he will most likely interpret the contract according to his/her own rules without being bound by what the contract envisages. This clause would have been useless.

      1. Submit the contract to arbitration

      The question will be different if the contract is subject to arbitration. In this case, arbitrators are not necessarily subject to interpreting a contract according to their own national regulations if the contract is subject to different one. In this case, it would be possible that they felt freer to consider the contract exclusively, especially when the agent was not of their nationality, did not know what the law of the agent’s country and was not bound by the guarantees provided for his protection.

      1. Mediation in the agency contract

      Mediation is an alternative dispute resolution system that can also be used in agency contracts. In mediation, the parties resolve the dispute by themselves with the help of a mediator.

      In this case, given that the mediator is not deciding, it is possible for the parties to freely reach an agreement whereby the agent agrees to a minor indemnification if, for example, other advantages are conferred upon him, if he comes to the conviction of having less right, difficulty of proof, if he prefers to save other costs, time, energy for your new business, etc.

      Mediators ensure the balance of the parties, but nothing prevents them to agree a compensation lower than the legal maximum (after the conclusion of the contract it is possible to negotiate a lower than the legal maximum). To foresee the possibility of mediation in the agency contract is, therefore, a good idea: this will permit the parties to better address and negotiate this compensation. In addition, providing for mediation does not limit the rights of any of the parties to withdraw and continue through the courts demanding the legal maximum.

      1. Imputing to the agent a previous breach

      When the contract ends, this is undoubtedly the cause that is most often attempted: when the contract is to be resolved, the Principal tries to argue that the Agent has previously failed to comply and that this is why the contract is being resolved.

      The law and the Directive exempt the payment of goodwill compensation when the agent has breach his obligations. But in that case, the Principal must be able to prove it when the agent discusses it. And it will not always be easy. The Principal must provide clear evidence and for this it will be convenient to collect information and documentation on the breach sufficiently and in advance and of sufficient importance (minor breaches are not usually accepted). Therefore, if the Principal wishes to follow this path it is advisable to prepare the arguments and evidences time before the agreement ends. It is strongly recommend contacting an expert advisor as soon as possible: he will help you to minimize the risks.

      The procedure to incorporate a foreign owned company in Spain is, in principle, easy and straight forward, however it is necessary to take into account certain new requirements derived from the tax and the anti-money laundering regulations, which could cause long delays in the incorporation process, even to EU and US companies, if they are not well advised and managed from the beginning of the procedure.

      The first step consist in collecting information about the foreign shareholder, in order to be able to prove its legal existence and activities: the foreign shareholder(s) will have to grant before a Notary Public in its country of residence a power of attorney authorising somebody in Spain to obtain its tax identification number (“NIE”), and also represent it before the Spanish notary when signing the deed of incorporation. In case the foreign shareholder is an individual person, the NIE should be applied for before the Spanish police or the Spanish Consulate at the country where the investor lives.

      If the shareholder is a corporation, apart from the Power of Attorney, it will have to obtain a certificate from its Companies’ Registry or Chamber of Commerce, stating its legal existence and main characteristics. This document is called “good standing certificate” (in the UK and US), “K-bis” (in France), “KvK” (in the Netherlands) or “visura” (in Italy). These two documents, the Power of Attorney mentioned in the above paragraph and the certificate from the Companies’ Registry, will have to be Apostilled or legalized by the correspondent Ministry, and Sworn translated into Spanish. Please note that we use to draft bilingual powers of attorney in order to avoid its sworn translation.

      The foreign shareholder will have to prove that its income is obtained from legal activities in order to be able to open a bank account in the name of the new company. The main document to prove this could be the Corporate or the Personal Income Tax return filed in its country of residence, but there could be other means, especially in case of individual persons.

      In case of a corporate shareholder, it will be necessary as well to declare, in principle through a public deed granted in Spain, who are the individual persons who, directly or through other companies, will hold more than a 25% interest in the new company to be incorporated. In case nobody holds more than a 25% (i.e. because there are 5 individual shareholders, holding each of them a 20%), it is declared that the effective control of the new company corresponds to its director.

      At this stage, it is also necessary to mention that the person(s) who will be the director(s) of the new company, in case they are foreigners, will also need to obtain their personal “NIE”. The NIE should be applied for before the Spanish police (this could be done by a proxy duly authorised though a Power of Attorney granted by the foreign director) or before the Spanish Consulate nearest to the city where the investor lives. In order to be a director of a Spanish company it is not necessary to be a shareholder, nor to have residence and work permit in Spain (provided the foreign director does not live in Spain).

      Meanwhile the necessary documents (Powers of Attorney, Companies’ Registry certificate, etc.) are being prepared by the foreign shareholder, the lawyer in Spain will apply for the new company’s name. It is advisable to point out that generic or usual names are not available quite often, therefore it is necessary to think in original names. Three different names could be applied for simultaneously.

      The drafting of the company’s Articles of Association or By Laws could be very quick, except if the company is going to have several shareholders and they wish specific clauses. In this case, it is also advisable to draft a Shareholders Agreement. The Shareholders’ Agreement could just contain some basic rules on dedication, compensation, non-competition, etc. and some more sophisticated rules on the sale of shares (tag along and drag along rights). As regards the By-Laws, they should mention the company’s name, its activity or activities, address in Spain –which cannot be just a P.O. Box-, share capital, number of shares and its face value, and starting date for the fiscal year, among other standard clauses.

      The management of the company could be organized through a sole director, two directors who could act jointly or separately, and in case there are more than three directors, they should organize themselves through a Board of Directors, being usual in this case to appoint a C.E.O. In order to be a director it is not necessary to be a shareholder. Under Spanish laws, the director(s) could be held liable for some company’s debts under certain circumstances which are legally defined. For this reason, it is necessary that the directors formally accept their appointment (personally appearing before the Notary or through a Power of Attorney).

      Before the incorporation, it will be necessary that either the new company’s director (the person to be appointed) or the representative of the corporate shareholder appears personally before the bank where the company will have its first bank account and signs the correspondent documents (KYC regulation). Once the bank account is opened, the shareholder will have to send a bank transfer for the new company’s share capital. In Spain, the minimum share capital for a limited company (S.L.) is Euros 3.000, while for a “Sociedad Anónima” (S.A.) it is Euros 60.000, but only 25% should be paid off at the incorporation moment. It is interesting to note that contributions to the share capital could be made in cash – which is the most common operation, especially at the incorporation – or in kind, with any type of assets: real estate, machinery, goods, trademarks, etc. The money for the share capital should be sent to the new company’s bank account from an account owned by the shareholder (or from each account owned by each shareholder, should they be several ones), not by any other different person. Once the Spanish bank receives the transfer, it will issue a certificate, which is necessary in order to incorporate the company.

      Once all the documents are ready, it is possible within very few days (almost immediately) to make the appointment with the Notary and sign the public deed of incorporation. This can be done at any notary in Spain, not being necessary that the notary practises at the same city where the company will have its corporate address. In order to summarize, the list of the necessary documents is:

      • Power(s) of Attorney granted by the foreign shareholder(s), apostilled and sworn translated.
      • Certificate regarding the legal existence of the foreign shareholder (only if it is a corporation), apostilled and sworn translated.
      • Statement on who are the last individual shareholders holding more than 25% interest in the new company, directly or indirectly (only in case of corporate shareholders).
      • NIE of the foreign shareholder(s).
      • NIE of the new company’s director(s), should they be a foreigners.
      • Certificate for the new company’s name.
      • Articles of Association.
      • Bank certificate regarding the contribution to the new company’s share capital.

      The deed of incorporation is signed by the proxy (or the individual shareholder(s), should they prefer to personally appear before the notary) before the chosen public notary, being also necessary to sign an official form to report the foreign investment to a public registry depending on the Spanish Ministry of Finance.

      Once the deed of incorporation is signed, the next steps consist in applying before the tax authorities to obtain the new company’s tax number (NIF / CIF) and filing the deed of incorporation before the Companies’ Registry. Some banks do allow new companies to operate once they have the NIF (which could be 2-3 days after the incorporation), while others request to wait until the deed of incorporation is filed at the Companies’ Registry (2-3 weeks).

      An estimation of the necessary time to complete all the procedure is 30-45 days, but of course the main delay is related to speed of the foreign investor in obtaining the necessary documents.

      Please note that if you wish to incorporate a foreign owned company in Spain it is always necessary to seek specific professional advice, as each case is different and regulations and the application of such regulations vary from time to time. The above article just explains the main steps and requirements for the incorporation of a company.

      Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

      It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

      And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

      The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

      The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

      1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

      Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

      1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
      2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
      3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
      4. Costs are reasonable and known in advance.
      5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

      西班牙企业家法 (第14/2013号法)准予了非欧盟国家的外国人可以通过执行投资获得西班牙的居留许可的条件：

      1. 房地产的投资金额等于或高于500,000欧元（五十万欧元）。投资可以在一个或多个房产中进行，但至少500,000欧元应该没有产权负担（抵押贷款，即）。如果价格高于500,000欧元，其余金额可以通过抵押支付。
      2. 金融投资金额等于或高于100万欧元。此类投资包括上市和非上市股票，如果是非上市股票，则可能来自已经运营的公司或新成立的股票，投资基金和西班牙银行的存款。
      3. 对西班牙主权债务的投资，金额等于或高于200万欧元。
      4. 在西班牙进行一项符合公共利益的商业项目。为此，应满足其中一个条件：创造就业机会，执行对其所在地区产生积极影响或对科学或技术创新作出相关贡献的投资。

      通过这种执行投资准予的签证至少有一年的效期。为了获得居住证，必须具备下列条件:

      • 年满十八岁
      • 没有犯罪前科
      • 有健康险(由在西班牙营业的公司聘用)
      • 拥有在西班牙居住的经济手段（即银行存款，或租赁或股息收入。工资单不符合此目的）。

      具备上述条件，可以准予两年居住和工作许可。两年后，居留许可可延长五年。

      在所有这些期间的投资都应该被保留。这个许可不需要外国人在西班牙居住超过六个月；因此，如果外国人居住在其他国家，这个许可也不会被取消。

      居住和工作许可证授予执行投资的个人。如果他/她已婚并且/或者有孩子或祖先依赖投资者，则可以同时或稍后申请签证。通过投资者拥有的公司可以执行投资，前提是该公司营业地不在免税区。

      西班牙居住许可证允许在欧盟国家（申根地区）内的自由流动。有效的旅行证件是护照。

      愿意在西班牙开展自营职业项目的外国人可以获得工作和居留许可，但通过与上述不同的程序。在这个情况下，最低投资额较低。

      房地产投资

      房地产投资可以涉及住宅，商业或工业产权。该产权可在收购前或收购后租赁给第三方，或由投资者使用。对于雄心勃勃的投资者而言，有几种可能性来构建对建筑物和公寓的投资以及更高的投资回报。

      相关房地产的收购需要支付一些费用：该收购按转让税征税，收购价格为6％至10％。税额具体取决于房产所在的每个西班牙地区，由买方支付。此外，买方应支付公证人和物业登记处的费用，这大约相当于收购价格的3％（两者相加）。购买财产时，这些金额一次支付。

      在西班牙房地产所有权相关的年度成本如下：

      • IBI或当地财产税，其金额根据物业的价值和地点计算。
      • “社区开支”，即与维护建筑物公共区域相关的费用：清洁，照明等。
      • 在某些情况下，还应向市议会支付小额垃圾税。
      • 如果房产未出租给第三方，业主应提交西班牙个人所得税申报表，并支付房产“地籍价值”（官方价值）的1,1％至2％。如果房产是租赁的，业主还应根据从租赁中获得的金额提交个人所得税申报表。

      此外，业主还应支付与其财产有关的费用：普通维护费，保险费，电费和水费等。

      在西班牙，产权被视为一项完全权利。业主可以自己使用该财产，可以将其出租给第三方，可以抵押，可以出售或赠送给任何第三方并且可以通过遗嘱继承给他的继承人。

      所有权人或由他指定的人使用财产的唯一限制是由公民规则确定的有关噪音、宠物、财产外部形象等。

      关于房产租赁，原则上是免费的，房东和房客的权利和义务是双方签订的私人租赁协议和西班牙城市租赁法（Ley de Arrendamientos Urbanos）提供的权利和义务。然而，如今许多西班牙城市（特别是巴塞罗那）已批准对所谓的旅游租赁进行强制限制，这些租约是短期（数天或数周）租约，并要求获得特别许可。

      需要指出的重要一点是获得西班牙居住许可证的外国人可以准予根据西班牙继承法（根据欧盟法规650/2012）授予他们的遗嘱。这些法律根据每个西班牙地区有不同。比如，在加泰罗尼亚立遗嘱者可以任命继承人。

      金融投资

      金融投资可以通过不同的目标执行，最低金额一百万欧元。

      • 在西班牙股票市场上市的公司股份。
      • 非上市公司的股份，可能是非上市公司经营公司或新成立的公司。 在这两种情况下，外国人可以拥有的股份比例没有限制，而非欧盟外国投资的活动部门很少（赌博，国防，航空，电视和广播）。 外国人可以被任命为西班牙公司的董事，唯一条件是先前获得所谓的“I.E.”，这是外国人的西班牙身份证号码。

      有新成立公司的情况下，要求投资的100万欧元将是公司的股本，并可用于公司的活动启动：例如，收购货物、支付工资和租金、支付供应商和分包商等

      西班牙公司进入欧洲市场，并且享有与拉美国家进行贸易的特权地位。

      • 投资基金：西班牙金融实体提供范围广泛的投资基金，从非常保守到高风险。

      银行存款

      房地产投资与金融投资相比，房地产投资的主要优势在于所要求的金额仅为房地产500,000欧元，而金融投资则为此金额的两倍。企业家法

      自“企业家法”生效以来，房地产投资一直是获得西班牙居留许可的最受欢迎的方式，可能是因为当时（2013-2016）房地产市场价格相当低,因为2008年的崩溃。

      然而,在西班牙购买房地产的过程与购买投资基金的股份或存入银行相比并不那么容易:投资者应该选择房地产(通常需要一次或两次访问西班牙)、价格和销售条件必须经过协商和起草，购买契约必须在公证人面前由投资者或其代理人签署，有与收购相关的税费和费用;购买房产地以后，就必须支付发生的费用和税款，并保持财产状况良好。

      与此相比，投资于资金或银行存款只需要投资者到银行一次，才能签署相关文件。没有相关的税收或费用，投资的流动性是充分的（即投资可以随时出售，很可能是以同样或更高的价格出售，但这对房地产投资没有保障）。

      如何在西班牙开设和经营银行账户

      在西班牙银行适用有关反洗钱的规定，其中包括KYC (了解你的客户Know Your Client)规则和证明基金合法来源的义务。KYC规则意味着投资者需要至少一次亲自出现在银行面前，在操作银行账户之前。资金的合法来源可以通过以下方式证明:

      • 有员工的情况下，通过工资单拆分，或雇主签发的证书，或投资者的个人所得税申报表。
      • 有自雇人士的情况下，通过个人所得税申报表或其他证明其专业活动的文件。
      • 有公司所有者的情况下，则通过公司的财务报表。
      • 如果投资者通过个人贷款获得了投资所需的资金，则应提供贷款协议，以及证明贷方提供资金合法来源的文件。
      • 可以提供其他文件，例如关于投资者拥有的房产租赁的股息或收入的文件。

      所有文件应由公证人或西班牙领事馆认证，并宣誓翻译成西班牙文。

      请您注意，本文章的目的是提供关于上述主题的西班牙法规则的一般概述，但本文的内容并不提供详尽的信息。做出任何决定之前，应该寻求法律咨询。

      In all M&A operations one of the issues that deserves special attention as regards its analysis, ascertainment and negotiation is the tax liabilities. Even though the parties could agree on the amount of such contingencies, to negotiate the possible guarantees that the seller should grant in order to protect the buyer from a possible claim by the tax authorities, the term during which the guarantees should be in force, and to agree on the communication mechanisms between the parties (buyer and seller) and the legal defense strategies if such claim from the tax authorities arises, requires substantial negotiation efforts.

      When the acquisition operation is formalized not through the purchase of shares, but through the purchase of the assets that form a business unit, the Spanish General Tax Law (“Ley General Tributaria” or “LGT”) provides a mechanism which implies an exception to the general principle provided by article 42 of the same law. Article 42 of LGT establishes the joint liability of the purchaser of a business unit for the tax liabilities of the selling company (“tax liability derived from company’s succession”). That is, in principle, according to article 42 of the LGT “the persons or entities that continue by any mean in the ownership or exercise of economic activities (the buyers) will be jointly liable with the previous owner for the tax liabilities derived from the exercise of such economic activities incurred by such previous owner”.

      However, the joint tax liability of the buyer could be limited through the application before the tax authorities of the tax certificate regulated by article 175.2 of the LGT. This certificate should be applied for by the prospective buyer, with the authorization of the present owner (the seller), and, once issued, the tax liability of the buyer becomes limited to the debts, penalties and liabilities mentioned in the certificate. If the certificate is issued without mentioning any amount, or if the tax authorities do not issue it within a three months term from the application’s date, the applicant (the buyer) will be released from any tax liability derived from company’s succession.

      The tax certificate for succession purposes includes the main taxes, as Value Added Tax and Corporate Income Tax, and can include as well debts derived from the withholding taxes on employees’ payroll, which in case of companies with a big number of employees could be of an outstanding amount. However, the buyer’s joint liability for salaries, related payroll amounts and social security contributions cannot be limited by such certificate, and such liability will always be joint with the business unit seller’s liability.

      The application for the tax certificate should be filed before the acquisition of the business unit is completed, even if the issuance of the certificate takes place later tan the closing date (but of course, it is wiser to not close the acquisition before having the certificate). The certificate’s validity lasts for one year, as regards periodical tax obligations (for example, Value Added Tax, Corporate Income Tax and withholding taxes on salaries) and for three months as regards non periodical tax obligations.

      It is very important to apply for the right tax certificate (“certificate for succession purposes according to article 175.2 of LGT”), and to not make a mistake and apply, for example, for the certificate regarding having fulfilled all tax obligations (“certificado de estar al corriente de las obligaciones fiscales”). Case law is plenty of judgments where a buyer applied for the wrong certificate, which showed no liabilities, and later on such buyer has been sentenced to pay the tax liabilities incurred by the previous owner of the business unit.

      根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

      然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

      到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

      最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

      然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

      这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

      在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

      在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

      The remuneration of directors is an intricate issue and one that deserves adequate treatment. Recently there has been a turn that deserves special attention.

      In its judgment of February 26, 2018, the Supreme Court modified the interpretation given by most experts and authorities and by the Directorate-General of Registries and the Notarial Profession in its decision dated June 17, 2016, ratified by the Barcelona Provincial Appellate Court in its decision 295/2017 of June 30, 2017, on the regulation of executive directors’ compensation.

      In its judgment, the Supreme Court held that the compensation of directors “in their capacity as such” includes the compensation of both deliberative and executive functions and that, accordingly, approval of the compensation of directors who discharge executive functions is subject not only to article 249 of the Corporate Enterprises Law (i.e., the requirement for there to be a contract approved by a two-thirds majority of the board) but also to article 217. Consequently:

      1. the bylaws must stipulate the compensation scheme for executive functions (although no reference is made to amount); and
      2. the amount payable for the discharge of executive functions must be included in the maximum annual amount stipulated by the shareholders’ meeting.

      The judgment was handed down in connection with a limited liability company and, furthermore, some of its considerations refer specifically to unlisted companies, although it does not clearly and indubitably exclude listed companies (which are, however, subject to specific rules under the compensation policy).

      The publication of this Supreme Court judgment gives rise to the need for an individualized analysis of each specific case, so that the appropriate measures can be taken to enable companies to bring their policies into line with its conclusions.

      The author of this post is Pablo Vinageras.

      Once convinced of the utility of mediation as a method of resolving conflicts between franchisor and franchisee and taken the decision to include a clause in the contracts that provides for it, the last step would be what elements should be taken into account when drafting it.

      1. The previous negotiation. It seems advisable that both parties grant themselves the possibility of trying to solve the problem with a previous formal negotiation. Mediation does not exclude the previous attempt made by the interested parties or their lawyers; however, it seems advisable to contractually provide a suitable end according to the circumstances. Experience shows that lengthening this phase too long may result in the conflict becoming more complicated and even more difficult to approach mediation.
      2. The clause may also provide for the place where the mediation will take place. Again at this point the parties are free. It is convenient that this is accurate indicating the concrete city.
      3. The language in which the mediation will be developed is the a faculty of the parties. There will be no difficulty in mediations in which both parties use the same language, but it is very convenient in contracts with parties that have different languages, or that belong to regions or countries with different co-official languages. The drafting or signing of the contract in a specific language does not presuppose that this must be the language of the mediation. It is an element to be taken into account also when requesting a mediator who can use that language in the chosen mediation institution.
      4. The procedure can also be decided by the parties. In particular, the number of sessions, the maximum expected duration, the participation of advisors, etc. Keep in mind that the greater or lesser regulation will allow to avoid future conflicts in this respect, although it will also imply a greater limit to the freedom of the parties that, nevertheless, will remain free to modify the agreement by mutual consent.
      5. The term of the mediation can also be contemplated. This would allow, for example, to prevent mediation from being extended only for purely procedural strategic purposes or to gather information from the other party before starting a procedure, etc. The professional mediators, however, are able to identify these manoeuvres, also having the power to put an end to mediation in those cases.
      6. Choosing the mediator or the mediation institution is an important choice. The parties can agree on who will be their mediator, indicate in the contract the elements to choose it, or submit directly to a Mediation Institution so that it is the one who designates it according to its own rules. These decisions can be alternatives (that is, that the parties agree on the mediator and, in case of lack of agreement, submit to an institution that names it), or they can be unique. The designation of an Institution requires that it has a sufficient guarantee of stability (avoid designating short-term institutions or without much future guarantee), with a sufficient panel of mediators depending on the characteristics of the mediation (language, competence, experience) and that allows the necessary flexibility for its operation.
      7. Finally, it is convenient that the clause includes an alternative way in case the mediation does not succeed either because the parties do not reach an agreement, or because they withdraw from the mediation. It is important to recall that mediation does not close the doors to the conflict be resolved by recourse to ordinary jurisdiction or arbitration. And in terms of specialized arbitration in distribution contracts, the IDArb (https://www.idiproject.com/content/idarb-idi-arbitration-project) is an excellent option.

      On the topic of the importance of Mediation in Distribution Agreements, you can check out the recording our webinar “Mediation in International Conflicts”

      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





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        Mediation and franchise agreements

        2018年4月10日

        • 西班牙
        • 分销协议
        • 特许经营

        The Spanish Law of the Agency Contract and the European Directive provide for the agent -except in certain cases-, goodwill compensation (clientele) when the relationship is terminated, based on the remuneration received by the Agent during the life of the contract. It is, then, a burden that in general every Principal will have pending when the contract ends.

        The temptation is to try to get rid of that payment and for this clients consult us frequently about strategies or tactics. I will try to summarize some of them indicating the chances of success (or not) that may have, both in the negotiation / drafting phase of the contract, and in the resolution phase.

        1. Change the name of the contract

        The first idea is to make a contract “similar” to the agency or call it in a different way (services, intermediation, representation contracts…). However, the change of name does not have any incidence since the contracts “are what they are” and not what the parties call them. So if there is a continued mediation in exchange for remuneration, there is a good chance that a judge will consider it an agency contract, whatever we call it, and with all its consequences.

        1. Limitation of compensation in the contract

        Another temptation in the drafting phase of the contract is to agree compensation less than the maximum legally envisaged, provide for payment in advance for the duration of the contract, or directly eliminate it.

        None of these solutions would be valid if they try to reduce the possibility of the Agent to receive the legal maximum, or for reasons not foreseen in the Law or the Directive. The law is imperative.

        1. Linking different agency contracts

        Given that the compensation is calculated according to the remunerations of the last five years and the clientele created, the temptation is to link several shorter contracts to consider only the clients of the last period.

        This will not necessarily be a good idea if most of the customers were created last year for instance, but it may also be useless because the Spanish law and the Directive provide that the fixed-term contract that continues to be executed becomes indefinite. The judge may consider all linked contracts as one.

        For this strategy to have the possibility of being useful, it would be necessary to liquidate each substituted contract, declare that “nothing has to be claimed by the parties” and that the successive contracts are sufficiently separated and have different entities, drafting, extension, etc. If the procedure is well thought out, it could be a way to get rid of a greater indemnity by clientele: a well-written pact whereby the agent declares the compensation received, and the following contract does not mimic the content and immediately to the previous one.

        1. Submitting the agreement to a foreign law

        In international contracts the temptation is to submit the contract to a right that is not Spanish, particularly when the Principal has that citizenship.

        The idea can be good or bad according to the chosen law and as long as it has some relation with the business. As is known, in the EU the Directive establishes minimum conditions that national laws must respect. But nothing prevents these laws from providing more advantageous conditions for agents. This means that, for example, choosing French law would be, in general, a bad idea for the Principal because compensation in that country is usually higher.

        In some cases, the choice of a law outside the European Union that does not provide compensation for clientele when the agent is European has been rejected because that the minimum right recognized in the Directive has not been respected.

        1. Submit the contract to non-national rules and judges

        Another less frequent possibility is to submit the contract to rules not from a country, but to general commercial norms (Lex Mercatoria) and to agree on a lower compensation.

        This is very uncommon and may not be very useful depending on who is to interpret the contract and where the agent resides. If, for example, the agent resides in Spain and who is going to interpret the contract is a Spanish judge, he will most likely interpret the contract according to his/her own rules without being bound by what the contract envisages. This clause would have been useless.

        1. Submit the contract to arbitration

        The question will be different if the contract is subject to arbitration. In this case, arbitrators are not necessarily subject to interpreting a contract according to their own national regulations if the contract is subject to different one. In this case, it would be possible that they felt freer to consider the contract exclusively, especially when the agent was not of their nationality, did not know what the law of the agent’s country and was not bound by the guarantees provided for his protection.

        1. Mediation in the agency contract

        Mediation is an alternative dispute resolution system that can also be used in agency contracts. In mediation, the parties resolve the dispute by themselves with the help of a mediator.

        In this case, given that the mediator is not deciding, it is possible for the parties to freely reach an agreement whereby the agent agrees to a minor indemnification if, for example, other advantages are conferred upon him, if he comes to the conviction of having less right, difficulty of proof, if he prefers to save other costs, time, energy for your new business, etc.

        Mediators ensure the balance of the parties, but nothing prevents them to agree a compensation lower than the legal maximum (after the conclusion of the contract it is possible to negotiate a lower than the legal maximum). To foresee the possibility of mediation in the agency contract is, therefore, a good idea: this will permit the parties to better address and negotiate this compensation. In addition, providing for mediation does not limit the rights of any of the parties to withdraw and continue through the courts demanding the legal maximum.

        1. Imputing to the agent a previous breach

        When the contract ends, this is undoubtedly the cause that is most often attempted: when the contract is to be resolved, the Principal tries to argue that the Agent has previously failed to comply and that this is why the contract is being resolved.

        The law and the Directive exempt the payment of goodwill compensation when the agent has breach his obligations. But in that case, the Principal must be able to prove it when the agent discusses it. And it will not always be easy. The Principal must provide clear evidence and for this it will be convenient to collect information and documentation on the breach sufficiently and in advance and of sufficient importance (minor breaches are not usually accepted). Therefore, if the Principal wishes to follow this path it is advisable to prepare the arguments and evidences time before the agreement ends. It is strongly recommend contacting an expert advisor as soon as possible: he will help you to minimize the risks.

        The procedure to incorporate a foreign owned company in Spain is, in principle, easy and straight forward, however it is necessary to take into account certain new requirements derived from the tax and the anti-money laundering regulations, which could cause long delays in the incorporation process, even to EU and US companies, if they are not well advised and managed from the beginning of the procedure.

        The first step consist in collecting information about the foreign shareholder, in order to be able to prove its legal existence and activities: the foreign shareholder(s) will have to grant before a Notary Public in its country of residence a power of attorney authorising somebody in Spain to obtain its tax identification number (“NIE”), and also represent it before the Spanish notary when signing the deed of incorporation. In case the foreign shareholder is an individual person, the NIE should be applied for before the Spanish police or the Spanish Consulate at the country where the investor lives.

        If the shareholder is a corporation, apart from the Power of Attorney, it will have to obtain a certificate from its Companies’ Registry or Chamber of Commerce, stating its legal existence and main characteristics. This document is called “good standing certificate” (in the UK and US), “K-bis” (in France), “KvK” (in the Netherlands) or “visura” (in Italy). These two documents, the Power of Attorney mentioned in the above paragraph and the certificate from the Companies’ Registry, will have to be Apostilled or legalized by the correspondent Ministry, and Sworn translated into Spanish. Please note that we use to draft bilingual powers of attorney in order to avoid its sworn translation.

        The foreign shareholder will have to prove that its income is obtained from legal activities in order to be able to open a bank account in the name of the new company. The main document to prove this could be the Corporate or the Personal Income Tax return filed in its country of residence, but there could be other means, especially in case of individual persons.

        In case of a corporate shareholder, it will be necessary as well to declare, in principle through a public deed granted in Spain, who are the individual persons who, directly or through other companies, will hold more than a 25% interest in the new company to be incorporated. In case nobody holds more than a 25% (i.e. because there are 5 individual shareholders, holding each of them a 20%), it is declared that the effective control of the new company corresponds to its director.

        At this stage, it is also necessary to mention that the person(s) who will be the director(s) of the new company, in case they are foreigners, will also need to obtain their personal “NIE”. The NIE should be applied for before the Spanish police (this could be done by a proxy duly authorised though a Power of Attorney granted by the foreign director) or before the Spanish Consulate nearest to the city where the investor lives. In order to be a director of a Spanish company it is not necessary to be a shareholder, nor to have residence and work permit in Spain (provided the foreign director does not live in Spain).

        Meanwhile the necessary documents (Powers of Attorney, Companies’ Registry certificate, etc.) are being prepared by the foreign shareholder, the lawyer in Spain will apply for the new company’s name. It is advisable to point out that generic or usual names are not available quite often, therefore it is necessary to think in original names. Three different names could be applied for simultaneously.

        The drafting of the company’s Articles of Association or By Laws could be very quick, except if the company is going to have several shareholders and they wish specific clauses. In this case, it is also advisable to draft a Shareholders Agreement. The Shareholders’ Agreement could just contain some basic rules on dedication, compensation, non-competition, etc. and some more sophisticated rules on the sale of shares (tag along and drag along rights). As regards the By-Laws, they should mention the company’s name, its activity or activities, address in Spain –which cannot be just a P.O. Box-, share capital, number of shares and its face value, and starting date for the fiscal year, among other standard clauses.

        The management of the company could be organized through a sole director, two directors who could act jointly or separately, and in case there are more than three directors, they should organize themselves through a Board of Directors, being usual in this case to appoint a C.E.O. In order to be a director it is not necessary to be a shareholder. Under Spanish laws, the director(s) could be held liable for some company’s debts under certain circumstances which are legally defined. For this reason, it is necessary that the directors formally accept their appointment (personally appearing before the Notary or through a Power of Attorney).

        Before the incorporation, it will be necessary that either the new company’s director (the person to be appointed) or the representative of the corporate shareholder appears personally before the bank where the company will have its first bank account and signs the correspondent documents (KYC regulation). Once the bank account is opened, the shareholder will have to send a bank transfer for the new company’s share capital. In Spain, the minimum share capital for a limited company (S.L.) is Euros 3.000, while for a “Sociedad Anónima” (S.A.) it is Euros 60.000, but only 25% should be paid off at the incorporation moment. It is interesting to note that contributions to the share capital could be made in cash – which is the most common operation, especially at the incorporation – or in kind, with any type of assets: real estate, machinery, goods, trademarks, etc. The money for the share capital should be sent to the new company’s bank account from an account owned by the shareholder (or from each account owned by each shareholder, should they be several ones), not by any other different person. Once the Spanish bank receives the transfer, it will issue a certificate, which is necessary in order to incorporate the company.

        Once all the documents are ready, it is possible within very few days (almost immediately) to make the appointment with the Notary and sign the public deed of incorporation. This can be done at any notary in Spain, not being necessary that the notary practises at the same city where the company will have its corporate address. In order to summarize, the list of the necessary documents is:

        • Power(s) of Attorney granted by the foreign shareholder(s), apostilled and sworn translated.
        • Certificate regarding the legal existence of the foreign shareholder (only if it is a corporation), apostilled and sworn translated.
        • Statement on who are the last individual shareholders holding more than 25% interest in the new company, directly or indirectly (only in case of corporate shareholders).
        • NIE of the foreign shareholder(s).
        • NIE of the new company’s director(s), should they be a foreigners.
        • Certificate for the new company’s name.
        • Articles of Association.
        • Bank certificate regarding the contribution to the new company’s share capital.

        The deed of incorporation is signed by the proxy (or the individual shareholder(s), should they prefer to personally appear before the notary) before the chosen public notary, being also necessary to sign an official form to report the foreign investment to a public registry depending on the Spanish Ministry of Finance.

        Once the deed of incorporation is signed, the next steps consist in applying before the tax authorities to obtain the new company’s tax number (NIF / CIF) and filing the deed of incorporation before the Companies’ Registry. Some banks do allow new companies to operate once they have the NIF (which could be 2-3 days after the incorporation), while others request to wait until the deed of incorporation is filed at the Companies’ Registry (2-3 weeks).

        An estimation of the necessary time to complete all the procedure is 30-45 days, but of course the main delay is related to speed of the foreign investor in obtaining the necessary documents.

        Please note that if you wish to incorporate a foreign owned company in Spain it is always necessary to seek specific professional advice, as each case is different and regulations and the application of such regulations vary from time to time. The above article just explains the main steps and requirements for the incorporation of a company.

        Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

        It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

        And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

        The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

        The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

        1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

        Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

        1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
        2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
        3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
        4. Costs are reasonable and known in advance.
        5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

        西班牙企业家法 (第14/2013号法)准予了非欧盟国家的外国人可以通过执行投资获得西班牙的居留许可的条件：

        1. 房地产的投资金额等于或高于500,000欧元（五十万欧元）。投资可以在一个或多个房产中进行，但至少500,000欧元应该没有产权负担（抵押贷款，即）。如果价格高于500,000欧元，其余金额可以通过抵押支付。
        2. 金融投资金额等于或高于100万欧元。此类投资包括上市和非上市股票，如果是非上市股票，则可能来自已经运营的公司或新成立的股票，投资基金和西班牙银行的存款。
        3. 对西班牙主权债务的投资，金额等于或高于200万欧元。
        4. 在西班牙进行一项符合公共利益的商业项目。为此，应满足其中一个条件：创造就业机会，执行对其所在地区产生积极影响或对科学或技术创新作出相关贡献的投资。

        通过这种执行投资准予的签证至少有一年的效期。为了获得居住证，必须具备下列条件:

        • 年满十八岁
        • 没有犯罪前科
        • 有健康险(由在西班牙营业的公司聘用)
        • 拥有在西班牙居住的经济手段（即银行存款，或租赁或股息收入。工资单不符合此目的）。

        具备上述条件，可以准予两年居住和工作许可。两年后，居留许可可延长五年。

        在所有这些期间的投资都应该被保留。这个许可不需要外国人在西班牙居住超过六个月；因此，如果外国人居住在其他国家，这个许可也不会被取消。

        居住和工作许可证授予执行投资的个人。如果他/她已婚并且/或者有孩子或祖先依赖投资者，则可以同时或稍后申请签证。通过投资者拥有的公司可以执行投资，前提是该公司营业地不在免税区。

        西班牙居住许可证允许在欧盟国家（申根地区）内的自由流动。有效的旅行证件是护照。

        愿意在西班牙开展自营职业项目的外国人可以获得工作和居留许可，但通过与上述不同的程序。在这个情况下，最低投资额较低。

        房地产投资

        房地产投资可以涉及住宅，商业或工业产权。该产权可在收购前或收购后租赁给第三方，或由投资者使用。对于雄心勃勃的投资者而言，有几种可能性来构建对建筑物和公寓的投资以及更高的投资回报。

        相关房地产的收购需要支付一些费用：该收购按转让税征税，收购价格为6％至10％。税额具体取决于房产所在的每个西班牙地区，由买方支付。此外，买方应支付公证人和物业登记处的费用，这大约相当于收购价格的3％（两者相加）。购买财产时，这些金额一次支付。

        在西班牙房地产所有权相关的年度成本如下：

        • IBI或当地财产税，其金额根据物业的价值和地点计算。
        • “社区开支”，即与维护建筑物公共区域相关的费用：清洁，照明等。
        • 在某些情况下，还应向市议会支付小额垃圾税。
        • 如果房产未出租给第三方，业主应提交西班牙个人所得税申报表，并支付房产“地籍价值”（官方价值）的1,1％至2％。如果房产是租赁的，业主还应根据从租赁中获得的金额提交个人所得税申报表。

        此外，业主还应支付与其财产有关的费用：普通维护费，保险费，电费和水费等。

        在西班牙，产权被视为一项完全权利。业主可以自己使用该财产，可以将其出租给第三方，可以抵押，可以出售或赠送给任何第三方并且可以通过遗嘱继承给他的继承人。

        所有权人或由他指定的人使用财产的唯一限制是由公民规则确定的有关噪音、宠物、财产外部形象等。

        关于房产租赁，原则上是免费的，房东和房客的权利和义务是双方签订的私人租赁协议和西班牙城市租赁法（Ley de Arrendamientos Urbanos）提供的权利和义务。然而，如今许多西班牙城市（特别是巴塞罗那）已批准对所谓的旅游租赁进行强制限制，这些租约是短期（数天或数周）租约，并要求获得特别许可。

        需要指出的重要一点是获得西班牙居住许可证的外国人可以准予根据西班牙继承法（根据欧盟法规650/2012）授予他们的遗嘱。这些法律根据每个西班牙地区有不同。比如，在加泰罗尼亚立遗嘱者可以任命继承人。

        金融投资

        金融投资可以通过不同的目标执行，最低金额一百万欧元。

        • 在西班牙股票市场上市的公司股份。
        • 非上市公司的股份，可能是非上市公司经营公司或新成立的公司。 在这两种情况下，外国人可以拥有的股份比例没有限制，而非欧盟外国投资的活动部门很少（赌博，国防，航空，电视和广播）。 外国人可以被任命为西班牙公司的董事，唯一条件是先前获得所谓的“I.E.”，这是外国人的西班牙身份证号码。

        有新成立公司的情况下，要求投资的100万欧元将是公司的股本，并可用于公司的活动启动：例如，收购货物、支付工资和租金、支付供应商和分包商等

        西班牙公司进入欧洲市场，并且享有与拉美国家进行贸易的特权地位。

        • 投资基金：西班牙金融实体提供范围广泛的投资基金，从非常保守到高风险。

        银行存款

        房地产投资与金融投资相比，房地产投资的主要优势在于所要求的金额仅为房地产500,000欧元，而金融投资则为此金额的两倍。企业家法

        自“企业家法”生效以来，房地产投资一直是获得西班牙居留许可的最受欢迎的方式，可能是因为当时（2013-2016）房地产市场价格相当低,因为2008年的崩溃。

        然而,在西班牙购买房地产的过程与购买投资基金的股份或存入银行相比并不那么容易:投资者应该选择房地产(通常需要一次或两次访问西班牙)、价格和销售条件必须经过协商和起草，购买契约必须在公证人面前由投资者或其代理人签署，有与收购相关的税费和费用;购买房产地以后，就必须支付发生的费用和税款，并保持财产状况良好。

        与此相比，投资于资金或银行存款只需要投资者到银行一次，才能签署相关文件。没有相关的税收或费用，投资的流动性是充分的（即投资可以随时出售，很可能是以同样或更高的价格出售，但这对房地产投资没有保障）。

        如何在西班牙开设和经营银行账户

        在西班牙银行适用有关反洗钱的规定，其中包括KYC (了解你的客户Know Your Client)规则和证明基金合法来源的义务。KYC规则意味着投资者需要至少一次亲自出现在银行面前，在操作银行账户之前。资金的合法来源可以通过以下方式证明:

        • 有员工的情况下，通过工资单拆分，或雇主签发的证书，或投资者的个人所得税申报表。
        • 有自雇人士的情况下，通过个人所得税申报表或其他证明其专业活动的文件。
        • 有公司所有者的情况下，则通过公司的财务报表。
        • 如果投资者通过个人贷款获得了投资所需的资金，则应提供贷款协议，以及证明贷方提供资金合法来源的文件。
        • 可以提供其他文件，例如关于投资者拥有的房产租赁的股息或收入的文件。

        所有文件应由公证人或西班牙领事馆认证，并宣誓翻译成西班牙文。

        请您注意，本文章的目的是提供关于上述主题的西班牙法规则的一般概述，但本文的内容并不提供详尽的信息。做出任何决定之前，应该寻求法律咨询。

        In all M&A operations one of the issues that deserves special attention as regards its analysis, ascertainment and negotiation is the tax liabilities. Even though the parties could agree on the amount of such contingencies, to negotiate the possible guarantees that the seller should grant in order to protect the buyer from a possible claim by the tax authorities, the term during which the guarantees should be in force, and to agree on the communication mechanisms between the parties (buyer and seller) and the legal defense strategies if such claim from the tax authorities arises, requires substantial negotiation efforts.

        When the acquisition operation is formalized not through the purchase of shares, but through the purchase of the assets that form a business unit, the Spanish General Tax Law (“Ley General Tributaria” or “LGT”) provides a mechanism which implies an exception to the general principle provided by article 42 of the same law. Article 42 of LGT establishes the joint liability of the purchaser of a business unit for the tax liabilities of the selling company (“tax liability derived from company’s succession”). That is, in principle, according to article 42 of the LGT “the persons or entities that continue by any mean in the ownership or exercise of economic activities (the buyers) will be jointly liable with the previous owner for the tax liabilities derived from the exercise of such economic activities incurred by such previous owner”.

        However, the joint tax liability of the buyer could be limited through the application before the tax authorities of the tax certificate regulated by article 175.2 of the LGT. This certificate should be applied for by the prospective buyer, with the authorization of the present owner (the seller), and, once issued, the tax liability of the buyer becomes limited to the debts, penalties and liabilities mentioned in the certificate. If the certificate is issued without mentioning any amount, or if the tax authorities do not issue it within a three months term from the application’s date, the applicant (the buyer) will be released from any tax liability derived from company’s succession.

        The tax certificate for succession purposes includes the main taxes, as Value Added Tax and Corporate Income Tax, and can include as well debts derived from the withholding taxes on employees’ payroll, which in case of companies with a big number of employees could be of an outstanding amount. However, the buyer’s joint liability for salaries, related payroll amounts and social security contributions cannot be limited by such certificate, and such liability will always be joint with the business unit seller’s liability.

        The application for the tax certificate should be filed before the acquisition of the business unit is completed, even if the issuance of the certificate takes place later tan the closing date (but of course, it is wiser to not close the acquisition before having the certificate). The certificate’s validity lasts for one year, as regards periodical tax obligations (for example, Value Added Tax, Corporate Income Tax and withholding taxes on salaries) and for three months as regards non periodical tax obligations.

        It is very important to apply for the right tax certificate (“certificate for succession purposes according to article 175.2 of LGT”), and to not make a mistake and apply, for example, for the certificate regarding having fulfilled all tax obligations (“certificado de estar al corriente de las obligaciones fiscales”). Case law is plenty of judgments where a buyer applied for the wrong certificate, which showed no liabilities, and later on such buyer has been sentenced to pay the tax liabilities incurred by the previous owner of the business unit.

        根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

        然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

        到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

        最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

        然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

        这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

        在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

        在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

        The remuneration of directors is an intricate issue and one that deserves adequate treatment. Recently there has been a turn that deserves special attention.

        In its judgment of February 26, 2018, the Supreme Court modified the interpretation given by most experts and authorities and by the Directorate-General of Registries and the Notarial Profession in its decision dated June 17, 2016, ratified by the Barcelona Provincial Appellate Court in its decision 295/2017 of June 30, 2017, on the regulation of executive directors’ compensation.

        In its judgment, the Supreme Court held that the compensation of directors “in their capacity as such” includes the compensation of both deliberative and executive functions and that, accordingly, approval of the compensation of directors who discharge executive functions is subject not only to article 249 of the Corporate Enterprises Law (i.e., the requirement for there to be a contract approved by a two-thirds majority of the board) but also to article 217. Consequently:

        1. the bylaws must stipulate the compensation scheme for executive functions (although no reference is made to amount); and
        2. the amount payable for the discharge of executive functions must be included in the maximum annual amount stipulated by the shareholders’ meeting.

        The judgment was handed down in connection with a limited liability company and, furthermore, some of its considerations refer specifically to unlisted companies, although it does not clearly and indubitably exclude listed companies (which are, however, subject to specific rules under the compensation policy).

        The publication of this Supreme Court judgment gives rise to the need for an individualized analysis of each specific case, so that the appropriate measures can be taken to enable companies to bring their policies into line with its conclusions.

        The author of this post is Pablo Vinageras.

        Once convinced of the utility of mediation as a method of resolving conflicts between franchisor and franchisee and taken the decision to include a clause in the contracts that provides for it, the last step would be what elements should be taken into account when drafting it.

        1. The previous negotiation. It seems advisable that both parties grant themselves the possibility of trying to solve the problem with a previous formal negotiation. Mediation does not exclude the previous attempt made by the interested parties or their lawyers; however, it seems advisable to contractually provide a suitable end according to the circumstances. Experience shows that lengthening this phase too long may result in the conflict becoming more complicated and even more difficult to approach mediation.
        2. The clause may also provide for the place where the mediation will take place. Again at this point the parties are free. It is convenient that this is accurate indicating the concrete city.
        3. The language in which the mediation will be developed is the a faculty of the parties. There will be no difficulty in mediations in which both parties use the same language, but it is very convenient in contracts with parties that have different languages, or that belong to regions or countries with different co-official languages. The drafting or signing of the contract in a specific language does not presuppose that this must be the language of the mediation. It is an element to be taken into account also when requesting a mediator who can use that language in the chosen mediation institution.
        4. The procedure can also be decided by the parties. In particular, the number of sessions, the maximum expected duration, the participation of advisors, etc. Keep in mind that the greater or lesser regulation will allow to avoid future conflicts in this respect, although it will also imply a greater limit to the freedom of the parties that, nevertheless, will remain free to modify the agreement by mutual consent.
        5. The term of the mediation can also be contemplated. This would allow, for example, to prevent mediation from being extended only for purely procedural strategic purposes or to gather information from the other party before starting a procedure, etc. The professional mediators, however, are able to identify these manoeuvres, also having the power to put an end to mediation in those cases.
        6. Choosing the mediator or the mediation institution is an important choice. The parties can agree on who will be their mediator, indicate in the contract the elements to choose it, or submit directly to a Mediation Institution so that it is the one who designates it according to its own rules. These decisions can be alternatives (that is, that the parties agree on the mediator and, in case of lack of agreement, submit to an institution that names it), or they can be unique. The designation of an Institution requires that it has a sufficient guarantee of stability (avoid designating short-term institutions or without much future guarantee), with a sufficient panel of mediators depending on the characteristics of the mediation (language, competence, experience) and that allows the necessary flexibility for its operation.
        7. Finally, it is convenient that the clause includes an alternative way in case the mediation does not succeed either because the parties do not reach an agreement, or because they withdraw from the mediation. It is important to recall that mediation does not close the doors to the conflict be resolved by recourse to ordinary jurisdiction or arbitration. And in terms of specialized arbitration in distribution contracts, the IDArb (https://www.idiproject.com/content/idarb-idi-arbitration-project) is an excellent option.

        On the topic of the importance of Mediation in Distribution Agreements, you can check out the recording our webinar “Mediation in International Conflicts”

        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





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          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

          The Spanish Law of the Agency Contract and the European Directive provide for the agent -except in certain cases-, goodwill compensation (clientele) when the relationship is terminated, based on the remuneration received by the Agent during the life of the contract. It is, then, a burden that in general every Principal will have pending when the contract ends.

          The temptation is to try to get rid of that payment and for this clients consult us frequently about strategies or tactics. I will try to summarize some of them indicating the chances of success (or not) that may have, both in the negotiation / drafting phase of the contract, and in the resolution phase.

          1. Change the name of the contract

          The first idea is to make a contract “similar” to the agency or call it in a different way (services, intermediation, representation contracts…). However, the change of name does not have any incidence since the contracts “are what they are” and not what the parties call them. So if there is a continued mediation in exchange for remuneration, there is a good chance that a judge will consider it an agency contract, whatever we call it, and with all its consequences.

          1. Limitation of compensation in the contract

          Another temptation in the drafting phase of the contract is to agree compensation less than the maximum legally envisaged, provide for payment in advance for the duration of the contract, or directly eliminate it.

          None of these solutions would be valid if they try to reduce the possibility of the Agent to receive the legal maximum, or for reasons not foreseen in the Law or the Directive. The law is imperative.

          1. Linking different agency contracts

          Given that the compensation is calculated according to the remunerations of the last five years and the clientele created, the temptation is to link several shorter contracts to consider only the clients of the last period.

          This will not necessarily be a good idea if most of the customers were created last year for instance, but it may also be useless because the Spanish law and the Directive provide that the fixed-term contract that continues to be executed becomes indefinite. The judge may consider all linked contracts as one.

          For this strategy to have the possibility of being useful, it would be necessary to liquidate each substituted contract, declare that “nothing has to be claimed by the parties” and that the successive contracts are sufficiently separated and have different entities, drafting, extension, etc. If the procedure is well thought out, it could be a way to get rid of a greater indemnity by clientele: a well-written pact whereby the agent declares the compensation received, and the following contract does not mimic the content and immediately to the previous one.

          1. Submitting the agreement to a foreign law

          In international contracts the temptation is to submit the contract to a right that is not Spanish, particularly when the Principal has that citizenship.

          The idea can be good or bad according to the chosen law and as long as it has some relation with the business. As is known, in the EU the Directive establishes minimum conditions that national laws must respect. But nothing prevents these laws from providing more advantageous conditions for agents. This means that, for example, choosing French law would be, in general, a bad idea for the Principal because compensation in that country is usually higher.

          In some cases, the choice of a law outside the European Union that does not provide compensation for clientele when the agent is European has been rejected because that the minimum right recognized in the Directive has not been respected.

          1. Submit the contract to non-national rules and judges

          Another less frequent possibility is to submit the contract to rules not from a country, but to general commercial norms (Lex Mercatoria) and to agree on a lower compensation.

          This is very uncommon and may not be very useful depending on who is to interpret the contract and where the agent resides. If, for example, the agent resides in Spain and who is going to interpret the contract is a Spanish judge, he will most likely interpret the contract according to his/her own rules without being bound by what the contract envisages. This clause would have been useless.

          1. Submit the contract to arbitration

          The question will be different if the contract is subject to arbitration. In this case, arbitrators are not necessarily subject to interpreting a contract according to their own national regulations if the contract is subject to different one. In this case, it would be possible that they felt freer to consider the contract exclusively, especially when the agent was not of their nationality, did not know what the law of the agent’s country and was not bound by the guarantees provided for his protection.

          1. Mediation in the agency contract

          Mediation is an alternative dispute resolution system that can also be used in agency contracts. In mediation, the parties resolve the dispute by themselves with the help of a mediator.

          In this case, given that the mediator is not deciding, it is possible for the parties to freely reach an agreement whereby the agent agrees to a minor indemnification if, for example, other advantages are conferred upon him, if he comes to the conviction of having less right, difficulty of proof, if he prefers to save other costs, time, energy for your new business, etc.

          Mediators ensure the balance of the parties, but nothing prevents them to agree a compensation lower than the legal maximum (after the conclusion of the contract it is possible to negotiate a lower than the legal maximum). To foresee the possibility of mediation in the agency contract is, therefore, a good idea: this will permit the parties to better address and negotiate this compensation. In addition, providing for mediation does not limit the rights of any of the parties to withdraw and continue through the courts demanding the legal maximum.

          1. Imputing to the agent a previous breach

          When the contract ends, this is undoubtedly the cause that is most often attempted: when the contract is to be resolved, the Principal tries to argue that the Agent has previously failed to comply and that this is why the contract is being resolved.

          The law and the Directive exempt the payment of goodwill compensation when the agent has breach his obligations. But in that case, the Principal must be able to prove it when the agent discusses it. And it will not always be easy. The Principal must provide clear evidence and for this it will be convenient to collect information and documentation on the breach sufficiently and in advance and of sufficient importance (minor breaches are not usually accepted). Therefore, if the Principal wishes to follow this path it is advisable to prepare the arguments and evidences time before the agreement ends. It is strongly recommend contacting an expert advisor as soon as possible: he will help you to minimize the risks.

          The procedure to incorporate a foreign owned company in Spain is, in principle, easy and straight forward, however it is necessary to take into account certain new requirements derived from the tax and the anti-money laundering regulations, which could cause long delays in the incorporation process, even to EU and US companies, if they are not well advised and managed from the beginning of the procedure.

          The first step consist in collecting information about the foreign shareholder, in order to be able to prove its legal existence and activities: the foreign shareholder(s) will have to grant before a Notary Public in its country of residence a power of attorney authorising somebody in Spain to obtain its tax identification number (“NIE”), and also represent it before the Spanish notary when signing the deed of incorporation. In case the foreign shareholder is an individual person, the NIE should be applied for before the Spanish police or the Spanish Consulate at the country where the investor lives.

          If the shareholder is a corporation, apart from the Power of Attorney, it will have to obtain a certificate from its Companies’ Registry or Chamber of Commerce, stating its legal existence and main characteristics. This document is called “good standing certificate” (in the UK and US), “K-bis” (in France), “KvK” (in the Netherlands) or “visura” (in Italy). These two documents, the Power of Attorney mentioned in the above paragraph and the certificate from the Companies’ Registry, will have to be Apostilled or legalized by the correspondent Ministry, and Sworn translated into Spanish. Please note that we use to draft bilingual powers of attorney in order to avoid its sworn translation.

          The foreign shareholder will have to prove that its income is obtained from legal activities in order to be able to open a bank account in the name of the new company. The main document to prove this could be the Corporate or the Personal Income Tax return filed in its country of residence, but there could be other means, especially in case of individual persons.

          In case of a corporate shareholder, it will be necessary as well to declare, in principle through a public deed granted in Spain, who are the individual persons who, directly or through other companies, will hold more than a 25% interest in the new company to be incorporated. In case nobody holds more than a 25% (i.e. because there are 5 individual shareholders, holding each of them a 20%), it is declared that the effective control of the new company corresponds to its director.

          At this stage, it is also necessary to mention that the person(s) who will be the director(s) of the new company, in case they are foreigners, will also need to obtain their personal “NIE”. The NIE should be applied for before the Spanish police (this could be done by a proxy duly authorised though a Power of Attorney granted by the foreign director) or before the Spanish Consulate nearest to the city where the investor lives. In order to be a director of a Spanish company it is not necessary to be a shareholder, nor to have residence and work permit in Spain (provided the foreign director does not live in Spain).

          Meanwhile the necessary documents (Powers of Attorney, Companies’ Registry certificate, etc.) are being prepared by the foreign shareholder, the lawyer in Spain will apply for the new company’s name. It is advisable to point out that generic or usual names are not available quite often, therefore it is necessary to think in original names. Three different names could be applied for simultaneously.

          The drafting of the company’s Articles of Association or By Laws could be very quick, except if the company is going to have several shareholders and they wish specific clauses. In this case, it is also advisable to draft a Shareholders Agreement. The Shareholders’ Agreement could just contain some basic rules on dedication, compensation, non-competition, etc. and some more sophisticated rules on the sale of shares (tag along and drag along rights). As regards the By-Laws, they should mention the company’s name, its activity or activities, address in Spain –which cannot be just a P.O. Box-, share capital, number of shares and its face value, and starting date for the fiscal year, among other standard clauses.

          The management of the company could be organized through a sole director, two directors who could act jointly or separately, and in case there are more than three directors, they should organize themselves through a Board of Directors, being usual in this case to appoint a C.E.O. In order to be a director it is not necessary to be a shareholder. Under Spanish laws, the director(s) could be held liable for some company’s debts under certain circumstances which are legally defined. For this reason, it is necessary that the directors formally accept their appointment (personally appearing before the Notary or through a Power of Attorney).

          Before the incorporation, it will be necessary that either the new company’s director (the person to be appointed) or the representative of the corporate shareholder appears personally before the bank where the company will have its first bank account and signs the correspondent documents (KYC regulation). Once the bank account is opened, the shareholder will have to send a bank transfer for the new company’s share capital. In Spain, the minimum share capital for a limited company (S.L.) is Euros 3.000, while for a “Sociedad Anónima” (S.A.) it is Euros 60.000, but only 25% should be paid off at the incorporation moment. It is interesting to note that contributions to the share capital could be made in cash – which is the most common operation, especially at the incorporation – or in kind, with any type of assets: real estate, machinery, goods, trademarks, etc. The money for the share capital should be sent to the new company’s bank account from an account owned by the shareholder (or from each account owned by each shareholder, should they be several ones), not by any other different person. Once the Spanish bank receives the transfer, it will issue a certificate, which is necessary in order to incorporate the company.

          Once all the documents are ready, it is possible within very few days (almost immediately) to make the appointment with the Notary and sign the public deed of incorporation. This can be done at any notary in Spain, not being necessary that the notary practises at the same city where the company will have its corporate address. In order to summarize, the list of the necessary documents is:

          • Power(s) of Attorney granted by the foreign shareholder(s), apostilled and sworn translated.
          • Certificate regarding the legal existence of the foreign shareholder (only if it is a corporation), apostilled and sworn translated.
          • Statement on who are the last individual shareholders holding more than 25% interest in the new company, directly or indirectly (only in case of corporate shareholders).
          • NIE of the foreign shareholder(s).
          • NIE of the new company’s director(s), should they be a foreigners.
          • Certificate for the new company’s name.
          • Articles of Association.
          • Bank certificate regarding the contribution to the new company’s share capital.

          The deed of incorporation is signed by the proxy (or the individual shareholder(s), should they prefer to personally appear before the notary) before the chosen public notary, being also necessary to sign an official form to report the foreign investment to a public registry depending on the Spanish Ministry of Finance.

          Once the deed of incorporation is signed, the next steps consist in applying before the tax authorities to obtain the new company’s tax number (NIF / CIF) and filing the deed of incorporation before the Companies’ Registry. Some banks do allow new companies to operate once they have the NIF (which could be 2-3 days after the incorporation), while others request to wait until the deed of incorporation is filed at the Companies’ Registry (2-3 weeks).

          An estimation of the necessary time to complete all the procedure is 30-45 days, but of course the main delay is related to speed of the foreign investor in obtaining the necessary documents.

          Please note that if you wish to incorporate a foreign owned company in Spain it is always necessary to seek specific professional advice, as each case is different and regulations and the application of such regulations vary from time to time. The above article just explains the main steps and requirements for the incorporation of a company.

          Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

          It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

          And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

          The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

          The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

          1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

          Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

          1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
          2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
          3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
          4. Costs are reasonable and known in advance.
          5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

          西班牙企业家法 (第14/2013号法)准予了非欧盟国家的外国人可以通过执行投资获得西班牙的居留许可的条件：

          1. 房地产的投资金额等于或高于500,000欧元（五十万欧元）。投资可以在一个或多个房产中进行，但至少500,000欧元应该没有产权负担（抵押贷款，即）。如果价格高于500,000欧元，其余金额可以通过抵押支付。
          2. 金融投资金额等于或高于100万欧元。此类投资包括上市和非上市股票，如果是非上市股票，则可能来自已经运营的公司或新成立的股票，投资基金和西班牙银行的存款。
          3. 对西班牙主权债务的投资，金额等于或高于200万欧元。
          4. 在西班牙进行一项符合公共利益的商业项目。为此，应满足其中一个条件：创造就业机会，执行对其所在地区产生积极影响或对科学或技术创新作出相关贡献的投资。

          通过这种执行投资准予的签证至少有一年的效期。为了获得居住证，必须具备下列条件:

          • 年满十八岁
          • 没有犯罪前科
          • 有健康险(由在西班牙营业的公司聘用)
          • 拥有在西班牙居住的经济手段（即银行存款，或租赁或股息收入。工资单不符合此目的）。

          具备上述条件，可以准予两年居住和工作许可。两年后，居留许可可延长五年。

          在所有这些期间的投资都应该被保留。这个许可不需要外国人在西班牙居住超过六个月；因此，如果外国人居住在其他国家，这个许可也不会被取消。

          居住和工作许可证授予执行投资的个人。如果他/她已婚并且/或者有孩子或祖先依赖投资者，则可以同时或稍后申请签证。通过投资者拥有的公司可以执行投资，前提是该公司营业地不在免税区。

          西班牙居住许可证允许在欧盟国家（申根地区）内的自由流动。有效的旅行证件是护照。

          愿意在西班牙开展自营职业项目的外国人可以获得工作和居留许可，但通过与上述不同的程序。在这个情况下，最低投资额较低。

          房地产投资

          房地产投资可以涉及住宅，商业或工业产权。该产权可在收购前或收购后租赁给第三方，或由投资者使用。对于雄心勃勃的投资者而言，有几种可能性来构建对建筑物和公寓的投资以及更高的投资回报。

          相关房地产的收购需要支付一些费用：该收购按转让税征税，收购价格为6％至10％。税额具体取决于房产所在的每个西班牙地区，由买方支付。此外，买方应支付公证人和物业登记处的费用，这大约相当于收购价格的3％（两者相加）。购买财产时，这些金额一次支付。

          在西班牙房地产所有权相关的年度成本如下：

          • IBI或当地财产税，其金额根据物业的价值和地点计算。
          • “社区开支”，即与维护建筑物公共区域相关的费用：清洁，照明等。
          • 在某些情况下，还应向市议会支付小额垃圾税。
          • 如果房产未出租给第三方，业主应提交西班牙个人所得税申报表，并支付房产“地籍价值”（官方价值）的1,1％至2％。如果房产是租赁的，业主还应根据从租赁中获得的金额提交个人所得税申报表。

          此外，业主还应支付与其财产有关的费用：普通维护费，保险费，电费和水费等。

          在西班牙，产权被视为一项完全权利。业主可以自己使用该财产，可以将其出租给第三方，可以抵押，可以出售或赠送给任何第三方并且可以通过遗嘱继承给他的继承人。

          所有权人或由他指定的人使用财产的唯一限制是由公民规则确定的有关噪音、宠物、财产外部形象等。

          关于房产租赁，原则上是免费的，房东和房客的权利和义务是双方签订的私人租赁协议和西班牙城市租赁法（Ley de Arrendamientos Urbanos）提供的权利和义务。然而，如今许多西班牙城市（特别是巴塞罗那）已批准对所谓的旅游租赁进行强制限制，这些租约是短期（数天或数周）租约，并要求获得特别许可。

          需要指出的重要一点是获得西班牙居住许可证的外国人可以准予根据西班牙继承法（根据欧盟法规650/2012）授予他们的遗嘱。这些法律根据每个西班牙地区有不同。比如，在加泰罗尼亚立遗嘱者可以任命继承人。

          金融投资

          金融投资可以通过不同的目标执行，最低金额一百万欧元。

          • 在西班牙股票市场上市的公司股份。
          • 非上市公司的股份，可能是非上市公司经营公司或新成立的公司。 在这两种情况下，外国人可以拥有的股份比例没有限制，而非欧盟外国投资的活动部门很少（赌博，国防，航空，电视和广播）。 外国人可以被任命为西班牙公司的董事，唯一条件是先前获得所谓的“I.E.”，这是外国人的西班牙身份证号码。

          有新成立公司的情况下，要求投资的100万欧元将是公司的股本，并可用于公司的活动启动：例如，收购货物、支付工资和租金、支付供应商和分包商等

          西班牙公司进入欧洲市场，并且享有与拉美国家进行贸易的特权地位。

          • 投资基金：西班牙金融实体提供范围广泛的投资基金，从非常保守到高风险。

          银行存款

          房地产投资与金融投资相比，房地产投资的主要优势在于所要求的金额仅为房地产500,000欧元，而金融投资则为此金额的两倍。企业家法

          自“企业家法”生效以来，房地产投资一直是获得西班牙居留许可的最受欢迎的方式，可能是因为当时（2013-2016）房地产市场价格相当低,因为2008年的崩溃。

          然而,在西班牙购买房地产的过程与购买投资基金的股份或存入银行相比并不那么容易:投资者应该选择房地产(通常需要一次或两次访问西班牙)、价格和销售条件必须经过协商和起草，购买契约必须在公证人面前由投资者或其代理人签署，有与收购相关的税费和费用;购买房产地以后，就必须支付发生的费用和税款，并保持财产状况良好。

          与此相比，投资于资金或银行存款只需要投资者到银行一次，才能签署相关文件。没有相关的税收或费用，投资的流动性是充分的（即投资可以随时出售，很可能是以同样或更高的价格出售，但这对房地产投资没有保障）。

          如何在西班牙开设和经营银行账户

          在西班牙银行适用有关反洗钱的规定，其中包括KYC (了解你的客户Know Your Client)规则和证明基金合法来源的义务。KYC规则意味着投资者需要至少一次亲自出现在银行面前，在操作银行账户之前。资金的合法来源可以通过以下方式证明:

          • 有员工的情况下，通过工资单拆分，或雇主签发的证书，或投资者的个人所得税申报表。
          • 有自雇人士的情况下，通过个人所得税申报表或其他证明其专业活动的文件。
          • 有公司所有者的情况下，则通过公司的财务报表。
          • 如果投资者通过个人贷款获得了投资所需的资金，则应提供贷款协议，以及证明贷方提供资金合法来源的文件。
          • 可以提供其他文件，例如关于投资者拥有的房产租赁的股息或收入的文件。

          所有文件应由公证人或西班牙领事馆认证，并宣誓翻译成西班牙文。

          请您注意，本文章的目的是提供关于上述主题的西班牙法规则的一般概述，但本文的内容并不提供详尽的信息。做出任何决定之前，应该寻求法律咨询。

          In all M&A operations one of the issues that deserves special attention as regards its analysis, ascertainment and negotiation is the tax liabilities. Even though the parties could agree on the amount of such contingencies, to negotiate the possible guarantees that the seller should grant in order to protect the buyer from a possible claim by the tax authorities, the term during which the guarantees should be in force, and to agree on the communication mechanisms between the parties (buyer and seller) and the legal defense strategies if such claim from the tax authorities arises, requires substantial negotiation efforts.

          When the acquisition operation is formalized not through the purchase of shares, but through the purchase of the assets that form a business unit, the Spanish General Tax Law (“Ley General Tributaria” or “LGT”) provides a mechanism which implies an exception to the general principle provided by article 42 of the same law. Article 42 of LGT establishes the joint liability of the purchaser of a business unit for the tax liabilities of the selling company (“tax liability derived from company’s succession”). That is, in principle, according to article 42 of the LGT “the persons or entities that continue by any mean in the ownership or exercise of economic activities (the buyers) will be jointly liable with the previous owner for the tax liabilities derived from the exercise of such economic activities incurred by such previous owner”.

          However, the joint tax liability of the buyer could be limited through the application before the tax authorities of the tax certificate regulated by article 175.2 of the LGT. This certificate should be applied for by the prospective buyer, with the authorization of the present owner (the seller), and, once issued, the tax liability of the buyer becomes limited to the debts, penalties and liabilities mentioned in the certificate. If the certificate is issued without mentioning any amount, or if the tax authorities do not issue it within a three months term from the application’s date, the applicant (the buyer) will be released from any tax liability derived from company’s succession.

          The tax certificate for succession purposes includes the main taxes, as Value Added Tax and Corporate Income Tax, and can include as well debts derived from the withholding taxes on employees’ payroll, which in case of companies with a big number of employees could be of an outstanding amount. However, the buyer’s joint liability for salaries, related payroll amounts and social security contributions cannot be limited by such certificate, and such liability will always be joint with the business unit seller’s liability.

          The application for the tax certificate should be filed before the acquisition of the business unit is completed, even if the issuance of the certificate takes place later tan the closing date (but of course, it is wiser to not close the acquisition before having the certificate). The certificate’s validity lasts for one year, as regards periodical tax obligations (for example, Value Added Tax, Corporate Income Tax and withholding taxes on salaries) and for three months as regards non periodical tax obligations.

          It is very important to apply for the right tax certificate (“certificate for succession purposes according to article 175.2 of LGT”), and to not make a mistake and apply, for example, for the certificate regarding having fulfilled all tax obligations (“certificado de estar al corriente de las obligaciones fiscales”). Case law is plenty of judgments where a buyer applied for the wrong certificate, which showed no liabilities, and later on such buyer has been sentenced to pay the tax liabilities incurred by the previous owner of the business unit.

          根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

          然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

          到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

          最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

          然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

          这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

          在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

          在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

          The remuneration of directors is an intricate issue and one that deserves adequate treatment. Recently there has been a turn that deserves special attention.

          In its judgment of February 26, 2018, the Supreme Court modified the interpretation given by most experts and authorities and by the Directorate-General of Registries and the Notarial Profession in its decision dated June 17, 2016, ratified by the Barcelona Provincial Appellate Court in its decision 295/2017 of June 30, 2017, on the regulation of executive directors’ compensation.

          In its judgment, the Supreme Court held that the compensation of directors “in their capacity as such” includes the compensation of both deliberative and executive functions and that, accordingly, approval of the compensation of directors who discharge executive functions is subject not only to article 249 of the Corporate Enterprises Law (i.e., the requirement for there to be a contract approved by a two-thirds majority of the board) but also to article 217. Consequently:

          1. the bylaws must stipulate the compensation scheme for executive functions (although no reference is made to amount); and
          2. the amount payable for the discharge of executive functions must be included in the maximum annual amount stipulated by the shareholders’ meeting.

          The judgment was handed down in connection with a limited liability company and, furthermore, some of its considerations refer specifically to unlisted companies, although it does not clearly and indubitably exclude listed companies (which are, however, subject to specific rules under the compensation policy).

          The publication of this Supreme Court judgment gives rise to the need for an individualized analysis of each specific case, so that the appropriate measures can be taken to enable companies to bring their policies into line with its conclusions.

          The author of this post is Pablo Vinageras.

          Once convinced of the utility of mediation as a method of resolving conflicts between franchisor and franchisee and taken the decision to include a clause in the contracts that provides for it, the last step would be what elements should be taken into account when drafting it.

          1. The previous negotiation. It seems advisable that both parties grant themselves the possibility of trying to solve the problem with a previous formal negotiation. Mediation does not exclude the previous attempt made by the interested parties or their lawyers; however, it seems advisable to contractually provide a suitable end according to the circumstances. Experience shows that lengthening this phase too long may result in the conflict becoming more complicated and even more difficult to approach mediation.
          2. The clause may also provide for the place where the mediation will take place. Again at this point the parties are free. It is convenient that this is accurate indicating the concrete city.
          3. The language in which the mediation will be developed is the a faculty of the parties. There will be no difficulty in mediations in which both parties use the same language, but it is very convenient in contracts with parties that have different languages, or that belong to regions or countries with different co-official languages. The drafting or signing of the contract in a specific language does not presuppose that this must be the language of the mediation. It is an element to be taken into account also when requesting a mediator who can use that language in the chosen mediation institution.
          4. The procedure can also be decided by the parties. In particular, the number of sessions, the maximum expected duration, the participation of advisors, etc. Keep in mind that the greater or lesser regulation will allow to avoid future conflicts in this respect, although it will also imply a greater limit to the freedom of the parties that, nevertheless, will remain free to modify the agreement by mutual consent.
          5. The term of the mediation can also be contemplated. This would allow, for example, to prevent mediation from being extended only for purely procedural strategic purposes or to gather information from the other party before starting a procedure, etc. The professional mediators, however, are able to identify these manoeuvres, also having the power to put an end to mediation in those cases.
          6. Choosing the mediator or the mediation institution is an important choice. The parties can agree on who will be their mediator, indicate in the contract the elements to choose it, or submit directly to a Mediation Institution so that it is the one who designates it according to its own rules. These decisions can be alternatives (that is, that the parties agree on the mediator and, in case of lack of agreement, submit to an institution that names it), or they can be unique. The designation of an Institution requires that it has a sufficient guarantee of stability (avoid designating short-term institutions or without much future guarantee), with a sufficient panel of mediators depending on the characteristics of the mediation (language, competence, experience) and that allows the necessary flexibility for its operation.
          7. Finally, it is convenient that the clause includes an alternative way in case the mediation does not succeed either because the parties do not reach an agreement, or because they withdraw from the mediation. It is important to recall that mediation does not close the doors to the conflict be resolved by recourse to ordinary jurisdiction or arbitration. And in terms of specialized arbitration in distribution contracts, the IDArb (https://www.idiproject.com/content/idarb-idi-arbitration-project) is an excellent option.

          On the topic of the importance of Mediation in Distribution Agreements, you can check out the recording our webinar “Mediation in International Conflicts”

          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





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            Spain: transfer of a business and occupational risk prevention

            2017年2月16日

            • 西班牙
            • 劳动法

            The Spanish Law of the Agency Contract and the European Directive provide for the agent -except in certain cases-, goodwill compensation (clientele) when the relationship is terminated, based on the remuneration received by the Agent during the life of the contract. It is, then, a burden that in general every Principal will have pending when the contract ends.

            The temptation is to try to get rid of that payment and for this clients consult us frequently about strategies or tactics. I will try to summarize some of them indicating the chances of success (or not) that may have, both in the negotiation / drafting phase of the contract, and in the resolution phase.

            1. Change the name of the contract

            The first idea is to make a contract “similar” to the agency or call it in a different way (services, intermediation, representation contracts…). However, the change of name does not have any incidence since the contracts “are what they are” and not what the parties call them. So if there is a continued mediation in exchange for remuneration, there is a good chance that a judge will consider it an agency contract, whatever we call it, and with all its consequences.

            1. Limitation of compensation in the contract

            Another temptation in the drafting phase of the contract is to agree compensation less than the maximum legally envisaged, provide for payment in advance for the duration of the contract, or directly eliminate it.

            None of these solutions would be valid if they try to reduce the possibility of the Agent to receive the legal maximum, or for reasons not foreseen in the Law or the Directive. The law is imperative.

            1. Linking different agency contracts

            Given that the compensation is calculated according to the remunerations of the last five years and the clientele created, the temptation is to link several shorter contracts to consider only the clients of the last period.

            This will not necessarily be a good idea if most of the customers were created last year for instance, but it may also be useless because the Spanish law and the Directive provide that the fixed-term contract that continues to be executed becomes indefinite. The judge may consider all linked contracts as one.

            For this strategy to have the possibility of being useful, it would be necessary to liquidate each substituted contract, declare that “nothing has to be claimed by the parties” and that the successive contracts are sufficiently separated and have different entities, drafting, extension, etc. If the procedure is well thought out, it could be a way to get rid of a greater indemnity by clientele: a well-written pact whereby the agent declares the compensation received, and the following contract does not mimic the content and immediately to the previous one.

            1. Submitting the agreement to a foreign law

            In international contracts the temptation is to submit the contract to a right that is not Spanish, particularly when the Principal has that citizenship.

            The idea can be good or bad according to the chosen law and as long as it has some relation with the business. As is known, in the EU the Directive establishes minimum conditions that national laws must respect. But nothing prevents these laws from providing more advantageous conditions for agents. This means that, for example, choosing French law would be, in general, a bad idea for the Principal because compensation in that country is usually higher.

            In some cases, the choice of a law outside the European Union that does not provide compensation for clientele when the agent is European has been rejected because that the minimum right recognized in the Directive has not been respected.

            1. Submit the contract to non-national rules and judges

            Another less frequent possibility is to submit the contract to rules not from a country, but to general commercial norms (Lex Mercatoria) and to agree on a lower compensation.

            This is very uncommon and may not be very useful depending on who is to interpret the contract and where the agent resides. If, for example, the agent resides in Spain and who is going to interpret the contract is a Spanish judge, he will most likely interpret the contract according to his/her own rules without being bound by what the contract envisages. This clause would have been useless.

            1. Submit the contract to arbitration

            The question will be different if the contract is subject to arbitration. In this case, arbitrators are not necessarily subject to interpreting a contract according to their own national regulations if the contract is subject to different one. In this case, it would be possible that they felt freer to consider the contract exclusively, especially when the agent was not of their nationality, did not know what the law of the agent’s country and was not bound by the guarantees provided for his protection.

            1. Mediation in the agency contract

            Mediation is an alternative dispute resolution system that can also be used in agency contracts. In mediation, the parties resolve the dispute by themselves with the help of a mediator.

            In this case, given that the mediator is not deciding, it is possible for the parties to freely reach an agreement whereby the agent agrees to a minor indemnification if, for example, other advantages are conferred upon him, if he comes to the conviction of having less right, difficulty of proof, if he prefers to save other costs, time, energy for your new business, etc.

            Mediators ensure the balance of the parties, but nothing prevents them to agree a compensation lower than the legal maximum (after the conclusion of the contract it is possible to negotiate a lower than the legal maximum). To foresee the possibility of mediation in the agency contract is, therefore, a good idea: this will permit the parties to better address and negotiate this compensation. In addition, providing for mediation does not limit the rights of any of the parties to withdraw and continue through the courts demanding the legal maximum.

            1. Imputing to the agent a previous breach

            When the contract ends, this is undoubtedly the cause that is most often attempted: when the contract is to be resolved, the Principal tries to argue that the Agent has previously failed to comply and that this is why the contract is being resolved.

            The law and the Directive exempt the payment of goodwill compensation when the agent has breach his obligations. But in that case, the Principal must be able to prove it when the agent discusses it. And it will not always be easy. The Principal must provide clear evidence and for this it will be convenient to collect information and documentation on the breach sufficiently and in advance and of sufficient importance (minor breaches are not usually accepted). Therefore, if the Principal wishes to follow this path it is advisable to prepare the arguments and evidences time before the agreement ends. It is strongly recommend contacting an expert advisor as soon as possible: he will help you to minimize the risks.

            The procedure to incorporate a foreign owned company in Spain is, in principle, easy and straight forward, however it is necessary to take into account certain new requirements derived from the tax and the anti-money laundering regulations, which could cause long delays in the incorporation process, even to EU and US companies, if they are not well advised and managed from the beginning of the procedure.

            The first step consist in collecting information about the foreign shareholder, in order to be able to prove its legal existence and activities: the foreign shareholder(s) will have to grant before a Notary Public in its country of residence a power of attorney authorising somebody in Spain to obtain its tax identification number (“NIE”), and also represent it before the Spanish notary when signing the deed of incorporation. In case the foreign shareholder is an individual person, the NIE should be applied for before the Spanish police or the Spanish Consulate at the country where the investor lives.

            If the shareholder is a corporation, apart from the Power of Attorney, it will have to obtain a certificate from its Companies’ Registry or Chamber of Commerce, stating its legal existence and main characteristics. This document is called “good standing certificate” (in the UK and US), “K-bis” (in France), “KvK” (in the Netherlands) or “visura” (in Italy). These two documents, the Power of Attorney mentioned in the above paragraph and the certificate from the Companies’ Registry, will have to be Apostilled or legalized by the correspondent Ministry, and Sworn translated into Spanish. Please note that we use to draft bilingual powers of attorney in order to avoid its sworn translation.

            The foreign shareholder will have to prove that its income is obtained from legal activities in order to be able to open a bank account in the name of the new company. The main document to prove this could be the Corporate or the Personal Income Tax return filed in its country of residence, but there could be other means, especially in case of individual persons.

            In case of a corporate shareholder, it will be necessary as well to declare, in principle through a public deed granted in Spain, who are the individual persons who, directly or through other companies, will hold more than a 25% interest in the new company to be incorporated. In case nobody holds more than a 25% (i.e. because there are 5 individual shareholders, holding each of them a 20%), it is declared that the effective control of the new company corresponds to its director.

            At this stage, it is also necessary to mention that the person(s) who will be the director(s) of the new company, in case they are foreigners, will also need to obtain their personal “NIE”. The NIE should be applied for before the Spanish police (this could be done by a proxy duly authorised though a Power of Attorney granted by the foreign director) or before the Spanish Consulate nearest to the city where the investor lives. In order to be a director of a Spanish company it is not necessary to be a shareholder, nor to have residence and work permit in Spain (provided the foreign director does not live in Spain).

            Meanwhile the necessary documents (Powers of Attorney, Companies’ Registry certificate, etc.) are being prepared by the foreign shareholder, the lawyer in Spain will apply for the new company’s name. It is advisable to point out that generic or usual names are not available quite often, therefore it is necessary to think in original names. Three different names could be applied for simultaneously.

            The drafting of the company’s Articles of Association or By Laws could be very quick, except if the company is going to have several shareholders and they wish specific clauses. In this case, it is also advisable to draft a Shareholders Agreement. The Shareholders’ Agreement could just contain some basic rules on dedication, compensation, non-competition, etc. and some more sophisticated rules on the sale of shares (tag along and drag along rights). As regards the By-Laws, they should mention the company’s name, its activity or activities, address in Spain –which cannot be just a P.O. Box-, share capital, number of shares and its face value, and starting date for the fiscal year, among other standard clauses.

            The management of the company could be organized through a sole director, two directors who could act jointly or separately, and in case there are more than three directors, they should organize themselves through a Board of Directors, being usual in this case to appoint a C.E.O. In order to be a director it is not necessary to be a shareholder. Under Spanish laws, the director(s) could be held liable for some company’s debts under certain circumstances which are legally defined. For this reason, it is necessary that the directors formally accept their appointment (personally appearing before the Notary or through a Power of Attorney).

            Before the incorporation, it will be necessary that either the new company’s director (the person to be appointed) or the representative of the corporate shareholder appears personally before the bank where the company will have its first bank account and signs the correspondent documents (KYC regulation). Once the bank account is opened, the shareholder will have to send a bank transfer for the new company’s share capital. In Spain, the minimum share capital for a limited company (S.L.) is Euros 3.000, while for a “Sociedad Anónima” (S.A.) it is Euros 60.000, but only 25% should be paid off at the incorporation moment. It is interesting to note that contributions to the share capital could be made in cash – which is the most common operation, especially at the incorporation – or in kind, with any type of assets: real estate, machinery, goods, trademarks, etc. The money for the share capital should be sent to the new company’s bank account from an account owned by the shareholder (or from each account owned by each shareholder, should they be several ones), not by any other different person. Once the Spanish bank receives the transfer, it will issue a certificate, which is necessary in order to incorporate the company.

            Once all the documents are ready, it is possible within very few days (almost immediately) to make the appointment with the Notary and sign the public deed of incorporation. This can be done at any notary in Spain, not being necessary that the notary practises at the same city where the company will have its corporate address. In order to summarize, the list of the necessary documents is:

            • Power(s) of Attorney granted by the foreign shareholder(s), apostilled and sworn translated.
            • Certificate regarding the legal existence of the foreign shareholder (only if it is a corporation), apostilled and sworn translated.
            • Statement on who are the last individual shareholders holding more than 25% interest in the new company, directly or indirectly (only in case of corporate shareholders).
            • NIE of the foreign shareholder(s).
            • NIE of the new company’s director(s), should they be a foreigners.
            • Certificate for the new company’s name.
            • Articles of Association.
            • Bank certificate regarding the contribution to the new company’s share capital.

            The deed of incorporation is signed by the proxy (or the individual shareholder(s), should they prefer to personally appear before the notary) before the chosen public notary, being also necessary to sign an official form to report the foreign investment to a public registry depending on the Spanish Ministry of Finance.

            Once the deed of incorporation is signed, the next steps consist in applying before the tax authorities to obtain the new company’s tax number (NIF / CIF) and filing the deed of incorporation before the Companies’ Registry. Some banks do allow new companies to operate once they have the NIF (which could be 2-3 days after the incorporation), while others request to wait until the deed of incorporation is filed at the Companies’ Registry (2-3 weeks).

            An estimation of the necessary time to complete all the procedure is 30-45 days, but of course the main delay is related to speed of the foreign investor in obtaining the necessary documents.

            Please note that if you wish to incorporate a foreign owned company in Spain it is always necessary to seek specific professional advice, as each case is different and regulations and the application of such regulations vary from time to time. The above article just explains the main steps and requirements for the incorporation of a company.

            Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

            It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

            And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

            The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

            The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

            1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

            Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

            1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
            2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
            3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
            4. Costs are reasonable and known in advance.
            5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

            西班牙企业家法 (第14/2013号法)准予了非欧盟国家的外国人可以通过执行投资获得西班牙的居留许可的条件：

            1. 房地产的投资金额等于或高于500,000欧元（五十万欧元）。投资可以在一个或多个房产中进行，但至少500,000欧元应该没有产权负担（抵押贷款，即）。如果价格高于500,000欧元，其余金额可以通过抵押支付。
            2. 金融投资金额等于或高于100万欧元。此类投资包括上市和非上市股票，如果是非上市股票，则可能来自已经运营的公司或新成立的股票，投资基金和西班牙银行的存款。
            3. 对西班牙主权债务的投资，金额等于或高于200万欧元。
            4. 在西班牙进行一项符合公共利益的商业项目。为此，应满足其中一个条件：创造就业机会，执行对其所在地区产生积极影响或对科学或技术创新作出相关贡献的投资。

            通过这种执行投资准予的签证至少有一年的效期。为了获得居住证，必须具备下列条件:

            • 年满十八岁
            • 没有犯罪前科
            • 有健康险(由在西班牙营业的公司聘用)
            • 拥有在西班牙居住的经济手段（即银行存款，或租赁或股息收入。工资单不符合此目的）。

            具备上述条件，可以准予两年居住和工作许可。两年后，居留许可可延长五年。

            在所有这些期间的投资都应该被保留。这个许可不需要外国人在西班牙居住超过六个月；因此，如果外国人居住在其他国家，这个许可也不会被取消。

            居住和工作许可证授予执行投资的个人。如果他/她已婚并且/或者有孩子或祖先依赖投资者，则可以同时或稍后申请签证。通过投资者拥有的公司可以执行投资，前提是该公司营业地不在免税区。

            西班牙居住许可证允许在欧盟国家（申根地区）内的自由流动。有效的旅行证件是护照。

            愿意在西班牙开展自营职业项目的外国人可以获得工作和居留许可，但通过与上述不同的程序。在这个情况下，最低投资额较低。

            房地产投资

            房地产投资可以涉及住宅，商业或工业产权。该产权可在收购前或收购后租赁给第三方，或由投资者使用。对于雄心勃勃的投资者而言，有几种可能性来构建对建筑物和公寓的投资以及更高的投资回报。

            相关房地产的收购需要支付一些费用：该收购按转让税征税，收购价格为6％至10％。税额具体取决于房产所在的每个西班牙地区，由买方支付。此外，买方应支付公证人和物业登记处的费用，这大约相当于收购价格的3％（两者相加）。购买财产时，这些金额一次支付。

            在西班牙房地产所有权相关的年度成本如下：

            • IBI或当地财产税，其金额根据物业的价值和地点计算。
            • “社区开支”，即与维护建筑物公共区域相关的费用：清洁，照明等。
            • 在某些情况下，还应向市议会支付小额垃圾税。
            • 如果房产未出租给第三方，业主应提交西班牙个人所得税申报表，并支付房产“地籍价值”（官方价值）的1,1％至2％。如果房产是租赁的，业主还应根据从租赁中获得的金额提交个人所得税申报表。

            此外，业主还应支付与其财产有关的费用：普通维护费，保险费，电费和水费等。

            在西班牙，产权被视为一项完全权利。业主可以自己使用该财产，可以将其出租给第三方，可以抵押，可以出售或赠送给任何第三方并且可以通过遗嘱继承给他的继承人。

            所有权人或由他指定的人使用财产的唯一限制是由公民规则确定的有关噪音、宠物、财产外部形象等。

            关于房产租赁，原则上是免费的，房东和房客的权利和义务是双方签订的私人租赁协议和西班牙城市租赁法（Ley de Arrendamientos Urbanos）提供的权利和义务。然而，如今许多西班牙城市（特别是巴塞罗那）已批准对所谓的旅游租赁进行强制限制，这些租约是短期（数天或数周）租约，并要求获得特别许可。

            需要指出的重要一点是获得西班牙居住许可证的外国人可以准予根据西班牙继承法（根据欧盟法规650/2012）授予他们的遗嘱。这些法律根据每个西班牙地区有不同。比如，在加泰罗尼亚立遗嘱者可以任命继承人。

            金融投资

            金融投资可以通过不同的目标执行，最低金额一百万欧元。

            • 在西班牙股票市场上市的公司股份。
            • 非上市公司的股份，可能是非上市公司经营公司或新成立的公司。 在这两种情况下，外国人可以拥有的股份比例没有限制，而非欧盟外国投资的活动部门很少（赌博，国防，航空，电视和广播）。 外国人可以被任命为西班牙公司的董事，唯一条件是先前获得所谓的“I.E.”，这是外国人的西班牙身份证号码。

            有新成立公司的情况下，要求投资的100万欧元将是公司的股本，并可用于公司的活动启动：例如，收购货物、支付工资和租金、支付供应商和分包商等

            西班牙公司进入欧洲市场，并且享有与拉美国家进行贸易的特权地位。

            • 投资基金：西班牙金融实体提供范围广泛的投资基金，从非常保守到高风险。

            银行存款

            房地产投资与金融投资相比，房地产投资的主要优势在于所要求的金额仅为房地产500,000欧元，而金融投资则为此金额的两倍。企业家法

            自“企业家法”生效以来，房地产投资一直是获得西班牙居留许可的最受欢迎的方式，可能是因为当时（2013-2016）房地产市场价格相当低,因为2008年的崩溃。

            然而,在西班牙购买房地产的过程与购买投资基金的股份或存入银行相比并不那么容易:投资者应该选择房地产(通常需要一次或两次访问西班牙)、价格和销售条件必须经过协商和起草，购买契约必须在公证人面前由投资者或其代理人签署，有与收购相关的税费和费用;购买房产地以后，就必须支付发生的费用和税款，并保持财产状况良好。

            与此相比，投资于资金或银行存款只需要投资者到银行一次，才能签署相关文件。没有相关的税收或费用，投资的流动性是充分的（即投资可以随时出售，很可能是以同样或更高的价格出售，但这对房地产投资没有保障）。

            如何在西班牙开设和经营银行账户

            在西班牙银行适用有关反洗钱的规定，其中包括KYC (了解你的客户Know Your Client)规则和证明基金合法来源的义务。KYC规则意味着投资者需要至少一次亲自出现在银行面前，在操作银行账户之前。资金的合法来源可以通过以下方式证明:

            • 有员工的情况下，通过工资单拆分，或雇主签发的证书，或投资者的个人所得税申报表。
            • 有自雇人士的情况下，通过个人所得税申报表或其他证明其专业活动的文件。
            • 有公司所有者的情况下，则通过公司的财务报表。
            • 如果投资者通过个人贷款获得了投资所需的资金，则应提供贷款协议，以及证明贷方提供资金合法来源的文件。
            • 可以提供其他文件，例如关于投资者拥有的房产租赁的股息或收入的文件。

            所有文件应由公证人或西班牙领事馆认证，并宣誓翻译成西班牙文。

            请您注意，本文章的目的是提供关于上述主题的西班牙法规则的一般概述，但本文的内容并不提供详尽的信息。做出任何决定之前，应该寻求法律咨询。

            In all M&A operations one of the issues that deserves special attention as regards its analysis, ascertainment and negotiation is the tax liabilities. Even though the parties could agree on the amount of such contingencies, to negotiate the possible guarantees that the seller should grant in order to protect the buyer from a possible claim by the tax authorities, the term during which the guarantees should be in force, and to agree on the communication mechanisms between the parties (buyer and seller) and the legal defense strategies if such claim from the tax authorities arises, requires substantial negotiation efforts.

            When the acquisition operation is formalized not through the purchase of shares, but through the purchase of the assets that form a business unit, the Spanish General Tax Law (“Ley General Tributaria” or “LGT”) provides a mechanism which implies an exception to the general principle provided by article 42 of the same law. Article 42 of LGT establishes the joint liability of the purchaser of a business unit for the tax liabilities of the selling company (“tax liability derived from company’s succession”). That is, in principle, according to article 42 of the LGT “the persons or entities that continue by any mean in the ownership or exercise of economic activities (the buyers) will be jointly liable with the previous owner for the tax liabilities derived from the exercise of such economic activities incurred by such previous owner”.

            However, the joint tax liability of the buyer could be limited through the application before the tax authorities of the tax certificate regulated by article 175.2 of the LGT. This certificate should be applied for by the prospective buyer, with the authorization of the present owner (the seller), and, once issued, the tax liability of the buyer becomes limited to the debts, penalties and liabilities mentioned in the certificate. If the certificate is issued without mentioning any amount, or if the tax authorities do not issue it within a three months term from the application’s date, the applicant (the buyer) will be released from any tax liability derived from company’s succession.

            The tax certificate for succession purposes includes the main taxes, as Value Added Tax and Corporate Income Tax, and can include as well debts derived from the withholding taxes on employees’ payroll, which in case of companies with a big number of employees could be of an outstanding amount. However, the buyer’s joint liability for salaries, related payroll amounts and social security contributions cannot be limited by such certificate, and such liability will always be joint with the business unit seller’s liability.

            The application for the tax certificate should be filed before the acquisition of the business unit is completed, even if the issuance of the certificate takes place later tan the closing date (but of course, it is wiser to not close the acquisition before having the certificate). The certificate’s validity lasts for one year, as regards periodical tax obligations (for example, Value Added Tax, Corporate Income Tax and withholding taxes on salaries) and for three months as regards non periodical tax obligations.

            It is very important to apply for the right tax certificate (“certificate for succession purposes according to article 175.2 of LGT”), and to not make a mistake and apply, for example, for the certificate regarding having fulfilled all tax obligations (“certificado de estar al corriente de las obligaciones fiscales”). Case law is plenty of judgments where a buyer applied for the wrong certificate, which showed no liabilities, and later on such buyer has been sentenced to pay the tax liabilities incurred by the previous owner of the business unit.

            根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

            然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

            到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

            最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

            然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

            这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

            在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

            在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

            The remuneration of directors is an intricate issue and one that deserves adequate treatment. Recently there has been a turn that deserves special attention.

            In its judgment of February 26, 2018, the Supreme Court modified the interpretation given by most experts and authorities and by the Directorate-General of Registries and the Notarial Profession in its decision dated June 17, 2016, ratified by the Barcelona Provincial Appellate Court in its decision 295/2017 of June 30, 2017, on the regulation of executive directors’ compensation.

            In its judgment, the Supreme Court held that the compensation of directors “in their capacity as such” includes the compensation of both deliberative and executive functions and that, accordingly, approval of the compensation of directors who discharge executive functions is subject not only to article 249 of the Corporate Enterprises Law (i.e., the requirement for there to be a contract approved by a two-thirds majority of the board) but also to article 217. Consequently:

            1. the bylaws must stipulate the compensation scheme for executive functions (although no reference is made to amount); and
            2. the amount payable for the discharge of executive functions must be included in the maximum annual amount stipulated by the shareholders’ meeting.

            The judgment was handed down in connection with a limited liability company and, furthermore, some of its considerations refer specifically to unlisted companies, although it does not clearly and indubitably exclude listed companies (which are, however, subject to specific rules under the compensation policy).

            The publication of this Supreme Court judgment gives rise to the need for an individualized analysis of each specific case, so that the appropriate measures can be taken to enable companies to bring their policies into line with its conclusions.

            The author of this post is Pablo Vinageras.

            Once convinced of the utility of mediation as a method of resolving conflicts between franchisor and franchisee and taken the decision to include a clause in the contracts that provides for it, the last step would be what elements should be taken into account when drafting it.

            1. The previous negotiation. It seems advisable that both parties grant themselves the possibility of trying to solve the problem with a previous formal negotiation. Mediation does not exclude the previous attempt made by the interested parties or their lawyers; however, it seems advisable to contractually provide a suitable end according to the circumstances. Experience shows that lengthening this phase too long may result in the conflict becoming more complicated and even more difficult to approach mediation.
            2. The clause may also provide for the place where the mediation will take place. Again at this point the parties are free. It is convenient that this is accurate indicating the concrete city.
            3. The language in which the mediation will be developed is the a faculty of the parties. There will be no difficulty in mediations in which both parties use the same language, but it is very convenient in contracts with parties that have different languages, or that belong to regions or countries with different co-official languages. The drafting or signing of the contract in a specific language does not presuppose that this must be the language of the mediation. It is an element to be taken into account also when requesting a mediator who can use that language in the chosen mediation institution.
            4. The procedure can also be decided by the parties. In particular, the number of sessions, the maximum expected duration, the participation of advisors, etc. Keep in mind that the greater or lesser regulation will allow to avoid future conflicts in this respect, although it will also imply a greater limit to the freedom of the parties that, nevertheless, will remain free to modify the agreement by mutual consent.
            5. The term of the mediation can also be contemplated. This would allow, for example, to prevent mediation from being extended only for purely procedural strategic purposes or to gather information from the other party before starting a procedure, etc. The professional mediators, however, are able to identify these manoeuvres, also having the power to put an end to mediation in those cases.
            6. Choosing the mediator or the mediation institution is an important choice. The parties can agree on who will be their mediator, indicate in the contract the elements to choose it, or submit directly to a Mediation Institution so that it is the one who designates it according to its own rules. These decisions can be alternatives (that is, that the parties agree on the mediator and, in case of lack of agreement, submit to an institution that names it), or they can be unique. The designation of an Institution requires that it has a sufficient guarantee of stability (avoid designating short-term institutions or without much future guarantee), with a sufficient panel of mediators depending on the characteristics of the mediation (language, competence, experience) and that allows the necessary flexibility for its operation.
            7. Finally, it is convenient that the clause includes an alternative way in case the mediation does not succeed either because the parties do not reach an agreement, or because they withdraw from the mediation. It is important to recall that mediation does not close the doors to the conflict be resolved by recourse to ordinary jurisdiction or arbitration. And in terms of specialized arbitration in distribution contracts, the IDArb (https://www.idiproject.com/content/idarb-idi-arbitration-project) is an excellent option.

            On the topic of the importance of Mediation in Distribution Agreements, you can check out the recording our webinar “Mediation in International Conflicts”

            Javier Gaspar

            业务领域

            • 仲裁
            • 分销协议
            • 特许经营
            • 诉讼
            • 体育
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              Spain – Employment suspension and leaves

              2017年1月27日

              • 西班牙
              • 劳动法

              The Spanish Law of the Agency Contract and the European Directive provide for the agent -except in certain cases-, goodwill compensation (clientele) when the relationship is terminated, based on the remuneration received by the Agent during the life of the contract. It is, then, a burden that in general every Principal will have pending when the contract ends.

              The temptation is to try to get rid of that payment and for this clients consult us frequently about strategies or tactics. I will try to summarize some of them indicating the chances of success (or not) that may have, both in the negotiation / drafting phase of the contract, and in the resolution phase.

              1. Change the name of the contract

              The first idea is to make a contract “similar” to the agency or call it in a different way (services, intermediation, representation contracts…). However, the change of name does not have any incidence since the contracts “are what they are” and not what the parties call them. So if there is a continued mediation in exchange for remuneration, there is a good chance that a judge will consider it an agency contract, whatever we call it, and with all its consequences.

              1. Limitation of compensation in the contract

              Another temptation in the drafting phase of the contract is to agree compensation less than the maximum legally envisaged, provide for payment in advance for the duration of the contract, or directly eliminate it.

              None of these solutions would be valid if they try to reduce the possibility of the Agent to receive the legal maximum, or for reasons not foreseen in the Law or the Directive. The law is imperative.

              1. Linking different agency contracts

              Given that the compensation is calculated according to the remunerations of the last five years and the clientele created, the temptation is to link several shorter contracts to consider only the clients of the last period.

              This will not necessarily be a good idea if most of the customers were created last year for instance, but it may also be useless because the Spanish law and the Directive provide that the fixed-term contract that continues to be executed becomes indefinite. The judge may consider all linked contracts as one.

              For this strategy to have the possibility of being useful, it would be necessary to liquidate each substituted contract, declare that “nothing has to be claimed by the parties” and that the successive contracts are sufficiently separated and have different entities, drafting, extension, etc. If the procedure is well thought out, it could be a way to get rid of a greater indemnity by clientele: a well-written pact whereby the agent declares the compensation received, and the following contract does not mimic the content and immediately to the previous one.

              1. Submitting the agreement to a foreign law

              In international contracts the temptation is to submit the contract to a right that is not Spanish, particularly when the Principal has that citizenship.

              The idea can be good or bad according to the chosen law and as long as it has some relation with the business. As is known, in the EU the Directive establishes minimum conditions that national laws must respect. But nothing prevents these laws from providing more advantageous conditions for agents. This means that, for example, choosing French law would be, in general, a bad idea for the Principal because compensation in that country is usually higher.

              In some cases, the choice of a law outside the European Union that does not provide compensation for clientele when the agent is European has been rejected because that the minimum right recognized in the Directive has not been respected.

              1. Submit the contract to non-national rules and judges

              Another less frequent possibility is to submit the contract to rules not from a country, but to general commercial norms (Lex Mercatoria) and to agree on a lower compensation.

              This is very uncommon and may not be very useful depending on who is to interpret the contract and where the agent resides. If, for example, the agent resides in Spain and who is going to interpret the contract is a Spanish judge, he will most likely interpret the contract according to his/her own rules without being bound by what the contract envisages. This clause would have been useless.

              1. Submit the contract to arbitration

              The question will be different if the contract is subject to arbitration. In this case, arbitrators are not necessarily subject to interpreting a contract according to their own national regulations if the contract is subject to different one. In this case, it would be possible that they felt freer to consider the contract exclusively, especially when the agent was not of their nationality, did not know what the law of the agent’s country and was not bound by the guarantees provided for his protection.

              1. Mediation in the agency contract

              Mediation is an alternative dispute resolution system that can also be used in agency contracts. In mediation, the parties resolve the dispute by themselves with the help of a mediator.

              In this case, given that the mediator is not deciding, it is possible for the parties to freely reach an agreement whereby the agent agrees to a minor indemnification if, for example, other advantages are conferred upon him, if he comes to the conviction of having less right, difficulty of proof, if he prefers to save other costs, time, energy for your new business, etc.

              Mediators ensure the balance of the parties, but nothing prevents them to agree a compensation lower than the legal maximum (after the conclusion of the contract it is possible to negotiate a lower than the legal maximum). To foresee the possibility of mediation in the agency contract is, therefore, a good idea: this will permit the parties to better address and negotiate this compensation. In addition, providing for mediation does not limit the rights of any of the parties to withdraw and continue through the courts demanding the legal maximum.

              1. Imputing to the agent a previous breach

              When the contract ends, this is undoubtedly the cause that is most often attempted: when the contract is to be resolved, the Principal tries to argue that the Agent has previously failed to comply and that this is why the contract is being resolved.

              The law and the Directive exempt the payment of goodwill compensation when the agent has breach his obligations. But in that case, the Principal must be able to prove it when the agent discusses it. And it will not always be easy. The Principal must provide clear evidence and for this it will be convenient to collect information and documentation on the breach sufficiently and in advance and of sufficient importance (minor breaches are not usually accepted). Therefore, if the Principal wishes to follow this path it is advisable to prepare the arguments and evidences time before the agreement ends. It is strongly recommend contacting an expert advisor as soon as possible: he will help you to minimize the risks.

              The procedure to incorporate a foreign owned company in Spain is, in principle, easy and straight forward, however it is necessary to take into account certain new requirements derived from the tax and the anti-money laundering regulations, which could cause long delays in the incorporation process, even to EU and US companies, if they are not well advised and managed from the beginning of the procedure.

              The first step consist in collecting information about the foreign shareholder, in order to be able to prove its legal existence and activities: the foreign shareholder(s) will have to grant before a Notary Public in its country of residence a power of attorney authorising somebody in Spain to obtain its tax identification number (“NIE”), and also represent it before the Spanish notary when signing the deed of incorporation. In case the foreign shareholder is an individual person, the NIE should be applied for before the Spanish police or the Spanish Consulate at the country where the investor lives.

              If the shareholder is a corporation, apart from the Power of Attorney, it will have to obtain a certificate from its Companies’ Registry or Chamber of Commerce, stating its legal existence and main characteristics. This document is called “good standing certificate” (in the UK and US), “K-bis” (in France), “KvK” (in the Netherlands) or “visura” (in Italy). These two documents, the Power of Attorney mentioned in the above paragraph and the certificate from the Companies’ Registry, will have to be Apostilled or legalized by the correspondent Ministry, and Sworn translated into Spanish. Please note that we use to draft bilingual powers of attorney in order to avoid its sworn translation.

              The foreign shareholder will have to prove that its income is obtained from legal activities in order to be able to open a bank account in the name of the new company. The main document to prove this could be the Corporate or the Personal Income Tax return filed in its country of residence, but there could be other means, especially in case of individual persons.

              In case of a corporate shareholder, it will be necessary as well to declare, in principle through a public deed granted in Spain, who are the individual persons who, directly or through other companies, will hold more than a 25% interest in the new company to be incorporated. In case nobody holds more than a 25% (i.e. because there are 5 individual shareholders, holding each of them a 20%), it is declared that the effective control of the new company corresponds to its director.

              At this stage, it is also necessary to mention that the person(s) who will be the director(s) of the new company, in case they are foreigners, will also need to obtain their personal “NIE”. The NIE should be applied for before the Spanish police (this could be done by a proxy duly authorised though a Power of Attorney granted by the foreign director) or before the Spanish Consulate nearest to the city where the investor lives. In order to be a director of a Spanish company it is not necessary to be a shareholder, nor to have residence and work permit in Spain (provided the foreign director does not live in Spain).

              Meanwhile the necessary documents (Powers of Attorney, Companies’ Registry certificate, etc.) are being prepared by the foreign shareholder, the lawyer in Spain will apply for the new company’s name. It is advisable to point out that generic or usual names are not available quite often, therefore it is necessary to think in original names. Three different names could be applied for simultaneously.

              The drafting of the company’s Articles of Association or By Laws could be very quick, except if the company is going to have several shareholders and they wish specific clauses. In this case, it is also advisable to draft a Shareholders Agreement. The Shareholders’ Agreement could just contain some basic rules on dedication, compensation, non-competition, etc. and some more sophisticated rules on the sale of shares (tag along and drag along rights). As regards the By-Laws, they should mention the company’s name, its activity or activities, address in Spain –which cannot be just a P.O. Box-, share capital, number of shares and its face value, and starting date for the fiscal year, among other standard clauses.

              The management of the company could be organized through a sole director, two directors who could act jointly or separately, and in case there are more than three directors, they should organize themselves through a Board of Directors, being usual in this case to appoint a C.E.O. In order to be a director it is not necessary to be a shareholder. Under Spanish laws, the director(s) could be held liable for some company’s debts under certain circumstances which are legally defined. For this reason, it is necessary that the directors formally accept their appointment (personally appearing before the Notary or through a Power of Attorney).

              Before the incorporation, it will be necessary that either the new company’s director (the person to be appointed) or the representative of the corporate shareholder appears personally before the bank where the company will have its first bank account and signs the correspondent documents (KYC regulation). Once the bank account is opened, the shareholder will have to send a bank transfer for the new company’s share capital. In Spain, the minimum share capital for a limited company (S.L.) is Euros 3.000, while for a “Sociedad Anónima” (S.A.) it is Euros 60.000, but only 25% should be paid off at the incorporation moment. It is interesting to note that contributions to the share capital could be made in cash – which is the most common operation, especially at the incorporation – or in kind, with any type of assets: real estate, machinery, goods, trademarks, etc. The money for the share capital should be sent to the new company’s bank account from an account owned by the shareholder (or from each account owned by each shareholder, should they be several ones), not by any other different person. Once the Spanish bank receives the transfer, it will issue a certificate, which is necessary in order to incorporate the company.

              Once all the documents are ready, it is possible within very few days (almost immediately) to make the appointment with the Notary and sign the public deed of incorporation. This can be done at any notary in Spain, not being necessary that the notary practises at the same city where the company will have its corporate address. In order to summarize, the list of the necessary documents is:

              • Power(s) of Attorney granted by the foreign shareholder(s), apostilled and sworn translated.
              • Certificate regarding the legal existence of the foreign shareholder (only if it is a corporation), apostilled and sworn translated.
              • Statement on who are the last individual shareholders holding more than 25% interest in the new company, directly or indirectly (only in case of corporate shareholders).
              • NIE of the foreign shareholder(s).
              • NIE of the new company’s director(s), should they be a foreigners.
              • Certificate for the new company’s name.
              • Articles of Association.
              • Bank certificate regarding the contribution to the new company’s share capital.

              The deed of incorporation is signed by the proxy (or the individual shareholder(s), should they prefer to personally appear before the notary) before the chosen public notary, being also necessary to sign an official form to report the foreign investment to a public registry depending on the Spanish Ministry of Finance.

              Once the deed of incorporation is signed, the next steps consist in applying before the tax authorities to obtain the new company’s tax number (NIF / CIF) and filing the deed of incorporation before the Companies’ Registry. Some banks do allow new companies to operate once they have the NIF (which could be 2-3 days after the incorporation), while others request to wait until the deed of incorporation is filed at the Companies’ Registry (2-3 weeks).

              An estimation of the necessary time to complete all the procedure is 30-45 days, but of course the main delay is related to speed of the foreign investor in obtaining the necessary documents.

              Please note that if you wish to incorporate a foreign owned company in Spain it is always necessary to seek specific professional advice, as each case is different and regulations and the application of such regulations vary from time to time. The above article just explains the main steps and requirements for the incorporation of a company.

              Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

              It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

              And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

              The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

              The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

              1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

              Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

              1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
              2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
              3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
              4. Costs are reasonable and known in advance.
              5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

              西班牙企业家法 (第14/2013号法)准予了非欧盟国家的外国人可以通过执行投资获得西班牙的居留许可的条件：

              1. 房地产的投资金额等于或高于500,000欧元（五十万欧元）。投资可以在一个或多个房产中进行，但至少500,000欧元应该没有产权负担（抵押贷款，即）。如果价格高于500,000欧元，其余金额可以通过抵押支付。
              2. 金融投资金额等于或高于100万欧元。此类投资包括上市和非上市股票，如果是非上市股票，则可能来自已经运营的公司或新成立的股票，投资基金和西班牙银行的存款。
              3. 对西班牙主权债务的投资，金额等于或高于200万欧元。
              4. 在西班牙进行一项符合公共利益的商业项目。为此，应满足其中一个条件：创造就业机会，执行对其所在地区产生积极影响或对科学或技术创新作出相关贡献的投资。

              通过这种执行投资准予的签证至少有一年的效期。为了获得居住证，必须具备下列条件:

              • 年满十八岁
              • 没有犯罪前科
              • 有健康险(由在西班牙营业的公司聘用)
              • 拥有在西班牙居住的经济手段（即银行存款，或租赁或股息收入。工资单不符合此目的）。

              具备上述条件，可以准予两年居住和工作许可。两年后，居留许可可延长五年。

              在所有这些期间的投资都应该被保留。这个许可不需要外国人在西班牙居住超过六个月；因此，如果外国人居住在其他国家，这个许可也不会被取消。

              居住和工作许可证授予执行投资的个人。如果他/她已婚并且/或者有孩子或祖先依赖投资者，则可以同时或稍后申请签证。通过投资者拥有的公司可以执行投资，前提是该公司营业地不在免税区。

              西班牙居住许可证允许在欧盟国家（申根地区）内的自由流动。有效的旅行证件是护照。

              愿意在西班牙开展自营职业项目的外国人可以获得工作和居留许可，但通过与上述不同的程序。在这个情况下，最低投资额较低。

              房地产投资

              房地产投资可以涉及住宅，商业或工业产权。该产权可在收购前或收购后租赁给第三方，或由投资者使用。对于雄心勃勃的投资者而言，有几种可能性来构建对建筑物和公寓的投资以及更高的投资回报。

              相关房地产的收购需要支付一些费用：该收购按转让税征税，收购价格为6％至10％。税额具体取决于房产所在的每个西班牙地区，由买方支付。此外，买方应支付公证人和物业登记处的费用，这大约相当于收购价格的3％（两者相加）。购买财产时，这些金额一次支付。

              在西班牙房地产所有权相关的年度成本如下：

              • IBI或当地财产税，其金额根据物业的价值和地点计算。
              • “社区开支”，即与维护建筑物公共区域相关的费用：清洁，照明等。
              • 在某些情况下，还应向市议会支付小额垃圾税。
              • 如果房产未出租给第三方，业主应提交西班牙个人所得税申报表，并支付房产“地籍价值”（官方价值）的1,1％至2％。如果房产是租赁的，业主还应根据从租赁中获得的金额提交个人所得税申报表。

              此外，业主还应支付与其财产有关的费用：普通维护费，保险费，电费和水费等。

              在西班牙，产权被视为一项完全权利。业主可以自己使用该财产，可以将其出租给第三方，可以抵押，可以出售或赠送给任何第三方并且可以通过遗嘱继承给他的继承人。

              所有权人或由他指定的人使用财产的唯一限制是由公民规则确定的有关噪音、宠物、财产外部形象等。

              关于房产租赁，原则上是免费的，房东和房客的权利和义务是双方签订的私人租赁协议和西班牙城市租赁法（Ley de Arrendamientos Urbanos）提供的权利和义务。然而，如今许多西班牙城市（特别是巴塞罗那）已批准对所谓的旅游租赁进行强制限制，这些租约是短期（数天或数周）租约，并要求获得特别许可。

              需要指出的重要一点是获得西班牙居住许可证的外国人可以准予根据西班牙继承法（根据欧盟法规650/2012）授予他们的遗嘱。这些法律根据每个西班牙地区有不同。比如，在加泰罗尼亚立遗嘱者可以任命继承人。

              金融投资

              金融投资可以通过不同的目标执行，最低金额一百万欧元。

              • 在西班牙股票市场上市的公司股份。
              • 非上市公司的股份，可能是非上市公司经营公司或新成立的公司。 在这两种情况下，外国人可以拥有的股份比例没有限制，而非欧盟外国投资的活动部门很少（赌博，国防，航空，电视和广播）。 外国人可以被任命为西班牙公司的董事，唯一条件是先前获得所谓的“I.E.”，这是外国人的西班牙身份证号码。

              有新成立公司的情况下，要求投资的100万欧元将是公司的股本，并可用于公司的活动启动：例如，收购货物、支付工资和租金、支付供应商和分包商等

              西班牙公司进入欧洲市场，并且享有与拉美国家进行贸易的特权地位。

              • 投资基金：西班牙金融实体提供范围广泛的投资基金，从非常保守到高风险。

              银行存款

              房地产投资与金融投资相比，房地产投资的主要优势在于所要求的金额仅为房地产500,000欧元，而金融投资则为此金额的两倍。企业家法

              自“企业家法”生效以来，房地产投资一直是获得西班牙居留许可的最受欢迎的方式，可能是因为当时（2013-2016）房地产市场价格相当低,因为2008年的崩溃。

              然而,在西班牙购买房地产的过程与购买投资基金的股份或存入银行相比并不那么容易:投资者应该选择房地产(通常需要一次或两次访问西班牙)、价格和销售条件必须经过协商和起草，购买契约必须在公证人面前由投资者或其代理人签署，有与收购相关的税费和费用;购买房产地以后，就必须支付发生的费用和税款，并保持财产状况良好。

              与此相比，投资于资金或银行存款只需要投资者到银行一次，才能签署相关文件。没有相关的税收或费用，投资的流动性是充分的（即投资可以随时出售，很可能是以同样或更高的价格出售，但这对房地产投资没有保障）。

              如何在西班牙开设和经营银行账户

              在西班牙银行适用有关反洗钱的规定，其中包括KYC (了解你的客户Know Your Client)规则和证明基金合法来源的义务。KYC规则意味着投资者需要至少一次亲自出现在银行面前，在操作银行账户之前。资金的合法来源可以通过以下方式证明:

              • 有员工的情况下，通过工资单拆分，或雇主签发的证书，或投资者的个人所得税申报表。
              • 有自雇人士的情况下，通过个人所得税申报表或其他证明其专业活动的文件。
              • 有公司所有者的情况下，则通过公司的财务报表。
              • 如果投资者通过个人贷款获得了投资所需的资金，则应提供贷款协议，以及证明贷方提供资金合法来源的文件。
              • 可以提供其他文件，例如关于投资者拥有的房产租赁的股息或收入的文件。

              所有文件应由公证人或西班牙领事馆认证，并宣誓翻译成西班牙文。

              请您注意，本文章的目的是提供关于上述主题的西班牙法规则的一般概述，但本文的内容并不提供详尽的信息。做出任何决定之前，应该寻求法律咨询。

              In all M&A operations one of the issues that deserves special attention as regards its analysis, ascertainment and negotiation is the tax liabilities. Even though the parties could agree on the amount of such contingencies, to negotiate the possible guarantees that the seller should grant in order to protect the buyer from a possible claim by the tax authorities, the term during which the guarantees should be in force, and to agree on the communication mechanisms between the parties (buyer and seller) and the legal defense strategies if such claim from the tax authorities arises, requires substantial negotiation efforts.

              When the acquisition operation is formalized not through the purchase of shares, but through the purchase of the assets that form a business unit, the Spanish General Tax Law (“Ley General Tributaria” or “LGT”) provides a mechanism which implies an exception to the general principle provided by article 42 of the same law. Article 42 of LGT establishes the joint liability of the purchaser of a business unit for the tax liabilities of the selling company (“tax liability derived from company’s succession”). That is, in principle, according to article 42 of the LGT “the persons or entities that continue by any mean in the ownership or exercise of economic activities (the buyers) will be jointly liable with the previous owner for the tax liabilities derived from the exercise of such economic activities incurred by such previous owner”.

              However, the joint tax liability of the buyer could be limited through the application before the tax authorities of the tax certificate regulated by article 175.2 of the LGT. This certificate should be applied for by the prospective buyer, with the authorization of the present owner (the seller), and, once issued, the tax liability of the buyer becomes limited to the debts, penalties and liabilities mentioned in the certificate. If the certificate is issued without mentioning any amount, or if the tax authorities do not issue it within a three months term from the application’s date, the applicant (the buyer) will be released from any tax liability derived from company’s succession.

              The tax certificate for succession purposes includes the main taxes, as Value Added Tax and Corporate Income Tax, and can include as well debts derived from the withholding taxes on employees’ payroll, which in case of companies with a big number of employees could be of an outstanding amount. However, the buyer’s joint liability for salaries, related payroll amounts and social security contributions cannot be limited by such certificate, and such liability will always be joint with the business unit seller’s liability.

              The application for the tax certificate should be filed before the acquisition of the business unit is completed, even if the issuance of the certificate takes place later tan the closing date (but of course, it is wiser to not close the acquisition before having the certificate). The certificate’s validity lasts for one year, as regards periodical tax obligations (for example, Value Added Tax, Corporate Income Tax and withholding taxes on salaries) and for three months as regards non periodical tax obligations.

              It is very important to apply for the right tax certificate (“certificate for succession purposes according to article 175.2 of LGT”), and to not make a mistake and apply, for example, for the certificate regarding having fulfilled all tax obligations (“certificado de estar al corriente de las obligaciones fiscales”). Case law is plenty of judgments where a buyer applied for the wrong certificate, which showed no liabilities, and later on such buyer has been sentenced to pay the tax liabilities incurred by the previous owner of the business unit.

              根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

              然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

              到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

              最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

              然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

              这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

              在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

              在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

              The remuneration of directors is an intricate issue and one that deserves adequate treatment. Recently there has been a turn that deserves special attention.

              In its judgment of February 26, 2018, the Supreme Court modified the interpretation given by most experts and authorities and by the Directorate-General of Registries and the Notarial Profession in its decision dated June 17, 2016, ratified by the Barcelona Provincial Appellate Court in its decision 295/2017 of June 30, 2017, on the regulation of executive directors’ compensation.

              In its judgment, the Supreme Court held that the compensation of directors “in their capacity as such” includes the compensation of both deliberative and executive functions and that, accordingly, approval of the compensation of directors who discharge executive functions is subject not only to article 249 of the Corporate Enterprises Law (i.e., the requirement for there to be a contract approved by a two-thirds majority of the board) but also to article 217. Consequently:

              1. the bylaws must stipulate the compensation scheme for executive functions (although no reference is made to amount); and
              2. the amount payable for the discharge of executive functions must be included in the maximum annual amount stipulated by the shareholders’ meeting.

              The judgment was handed down in connection with a limited liability company and, furthermore, some of its considerations refer specifically to unlisted companies, although it does not clearly and indubitably exclude listed companies (which are, however, subject to specific rules under the compensation policy).

              The publication of this Supreme Court judgment gives rise to the need for an individualized analysis of each specific case, so that the appropriate measures can be taken to enable companies to bring their policies into line with its conclusions.

              The author of this post is Pablo Vinageras.

              Once convinced of the utility of mediation as a method of resolving conflicts between franchisor and franchisee and taken the decision to include a clause in the contracts that provides for it, the last step would be what elements should be taken into account when drafting it.

              1. The previous negotiation. It seems advisable that both parties grant themselves the possibility of trying to solve the problem with a previous formal negotiation. Mediation does not exclude the previous attempt made by the interested parties or their lawyers; however, it seems advisable to contractually provide a suitable end according to the circumstances. Experience shows that lengthening this phase too long may result in the conflict becoming more complicated and even more difficult to approach mediation.
              2. The clause may also provide for the place where the mediation will take place. Again at this point the parties are free. It is convenient that this is accurate indicating the concrete city.
              3. The language in which the mediation will be developed is the a faculty of the parties. There will be no difficulty in mediations in which both parties use the same language, but it is very convenient in contracts with parties that have different languages, or that belong to regions or countries with different co-official languages. The drafting or signing of the contract in a specific language does not presuppose that this must be the language of the mediation. It is an element to be taken into account also when requesting a mediator who can use that language in the chosen mediation institution.
              4. The procedure can also be decided by the parties. In particular, the number of sessions, the maximum expected duration, the participation of advisors, etc. Keep in mind that the greater or lesser regulation will allow to avoid future conflicts in this respect, although it will also imply a greater limit to the freedom of the parties that, nevertheless, will remain free to modify the agreement by mutual consent.
              5. The term of the mediation can also be contemplated. This would allow, for example, to prevent mediation from being extended only for purely procedural strategic purposes or to gather information from the other party before starting a procedure, etc. The professional mediators, however, are able to identify these manoeuvres, also having the power to put an end to mediation in those cases.
              6. Choosing the mediator or the mediation institution is an important choice. The parties can agree on who will be their mediator, indicate in the contract the elements to choose it, or submit directly to a Mediation Institution so that it is the one who designates it according to its own rules. These decisions can be alternatives (that is, that the parties agree on the mediator and, in case of lack of agreement, submit to an institution that names it), or they can be unique. The designation of an Institution requires that it has a sufficient guarantee of stability (avoid designating short-term institutions or without much future guarantee), with a sufficient panel of mediators depending on the characteristics of the mediation (language, competence, experience) and that allows the necessary flexibility for its operation.
              7. Finally, it is convenient that the clause includes an alternative way in case the mediation does not succeed either because the parties do not reach an agreement, or because they withdraw from the mediation. It is important to recall that mediation does not close the doors to the conflict be resolved by recourse to ordinary jurisdiction or arbitration. And in terms of specialized arbitration in distribution contracts, the IDArb (https://www.idiproject.com/content/idarb-idi-arbitration-project) is an excellent option.

              On the topic of the importance of Mediation in Distribution Agreements, you can check out the recording our webinar “Mediation in International Conflicts”

              Javier Gaspar

              业务领域

              • 仲裁
              • 分销协议
              • 特许经营
              • 诉讼
              • 体育
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                Spain – Agency and distribution agreements

                2017年1月16日

                • 西班牙
                • 分销协议

                The Spanish Law of the Agency Contract and the European Directive provide for the agent -except in certain cases-, goodwill compensation (clientele) when the relationship is terminated, based on the remuneration received by the Agent during the life of the contract. It is, then, a burden that in general every Principal will have pending when the contract ends.

                The temptation is to try to get rid of that payment and for this clients consult us frequently about strategies or tactics. I will try to summarize some of them indicating the chances of success (or not) that may have, both in the negotiation / drafting phase of the contract, and in the resolution phase.

                1. Change the name of the contract

                The first idea is to make a contract “similar” to the agency or call it in a different way (services, intermediation, representation contracts…). However, the change of name does not have any incidence since the contracts “are what they are” and not what the parties call them. So if there is a continued mediation in exchange for remuneration, there is a good chance that a judge will consider it an agency contract, whatever we call it, and with all its consequences.

                1. Limitation of compensation in the contract

                Another temptation in the drafting phase of the contract is to agree compensation less than the maximum legally envisaged, provide for payment in advance for the duration of the contract, or directly eliminate it.

                None of these solutions would be valid if they try to reduce the possibility of the Agent to receive the legal maximum, or for reasons not foreseen in the Law or the Directive. The law is imperative.

                1. Linking different agency contracts

                Given that the compensation is calculated according to the remunerations of the last five years and the clientele created, the temptation is to link several shorter contracts to consider only the clients of the last period.

                This will not necessarily be a good idea if most of the customers were created last year for instance, but it may also be useless because the Spanish law and the Directive provide that the fixed-term contract that continues to be executed becomes indefinite. The judge may consider all linked contracts as one.

                For this strategy to have the possibility of being useful, it would be necessary to liquidate each substituted contract, declare that “nothing has to be claimed by the parties” and that the successive contracts are sufficiently separated and have different entities, drafting, extension, etc. If the procedure is well thought out, it could be a way to get rid of a greater indemnity by clientele: a well-written pact whereby the agent declares the compensation received, and the following contract does not mimic the content and immediately to the previous one.

                1. Submitting the agreement to a foreign law

                In international contracts the temptation is to submit the contract to a right that is not Spanish, particularly when the Principal has that citizenship.

                The idea can be good or bad according to the chosen law and as long as it has some relation with the business. As is known, in the EU the Directive establishes minimum conditions that national laws must respect. But nothing prevents these laws from providing more advantageous conditions for agents. This means that, for example, choosing French law would be, in general, a bad idea for the Principal because compensation in that country is usually higher.

                In some cases, the choice of a law outside the European Union that does not provide compensation for clientele when the agent is European has been rejected because that the minimum right recognized in the Directive has not been respected.

                1. Submit the contract to non-national rules and judges

                Another less frequent possibility is to submit the contract to rules not from a country, but to general commercial norms (Lex Mercatoria) and to agree on a lower compensation.

                This is very uncommon and may not be very useful depending on who is to interpret the contract and where the agent resides. If, for example, the agent resides in Spain and who is going to interpret the contract is a Spanish judge, he will most likely interpret the contract according to his/her own rules without being bound by what the contract envisages. This clause would have been useless.

                1. Submit the contract to arbitration

                The question will be different if the contract is subject to arbitration. In this case, arbitrators are not necessarily subject to interpreting a contract according to their own national regulations if the contract is subject to different one. In this case, it would be possible that they felt freer to consider the contract exclusively, especially when the agent was not of their nationality, did not know what the law of the agent’s country and was not bound by the guarantees provided for his protection.

                1. Mediation in the agency contract

                Mediation is an alternative dispute resolution system that can also be used in agency contracts. In mediation, the parties resolve the dispute by themselves with the help of a mediator.

                In this case, given that the mediator is not deciding, it is possible for the parties to freely reach an agreement whereby the agent agrees to a minor indemnification if, for example, other advantages are conferred upon him, if he comes to the conviction of having less right, difficulty of proof, if he prefers to save other costs, time, energy for your new business, etc.

                Mediators ensure the balance of the parties, but nothing prevents them to agree a compensation lower than the legal maximum (after the conclusion of the contract it is possible to negotiate a lower than the legal maximum). To foresee the possibility of mediation in the agency contract is, therefore, a good idea: this will permit the parties to better address and negotiate this compensation. In addition, providing for mediation does not limit the rights of any of the parties to withdraw and continue through the courts demanding the legal maximum.

                1. Imputing to the agent a previous breach

                When the contract ends, this is undoubtedly the cause that is most often attempted: when the contract is to be resolved, the Principal tries to argue that the Agent has previously failed to comply and that this is why the contract is being resolved.

                The law and the Directive exempt the payment of goodwill compensation when the agent has breach his obligations. But in that case, the Principal must be able to prove it when the agent discusses it. And it will not always be easy. The Principal must provide clear evidence and for this it will be convenient to collect information and documentation on the breach sufficiently and in advance and of sufficient importance (minor breaches are not usually accepted). Therefore, if the Principal wishes to follow this path it is advisable to prepare the arguments and evidences time before the agreement ends. It is strongly recommend contacting an expert advisor as soon as possible: he will help you to minimize the risks.

                The procedure to incorporate a foreign owned company in Spain is, in principle, easy and straight forward, however it is necessary to take into account certain new requirements derived from the tax and the anti-money laundering regulations, which could cause long delays in the incorporation process, even to EU and US companies, if they are not well advised and managed from the beginning of the procedure.

                The first step consist in collecting information about the foreign shareholder, in order to be able to prove its legal existence and activities: the foreign shareholder(s) will have to grant before a Notary Public in its country of residence a power of attorney authorising somebody in Spain to obtain its tax identification number (“NIE”), and also represent it before the Spanish notary when signing the deed of incorporation. In case the foreign shareholder is an individual person, the NIE should be applied for before the Spanish police or the Spanish Consulate at the country where the investor lives.

                If the shareholder is a corporation, apart from the Power of Attorney, it will have to obtain a certificate from its Companies’ Registry or Chamber of Commerce, stating its legal existence and main characteristics. This document is called “good standing certificate” (in the UK and US), “K-bis” (in France), “KvK” (in the Netherlands) or “visura” (in Italy). These two documents, the Power of Attorney mentioned in the above paragraph and the certificate from the Companies’ Registry, will have to be Apostilled or legalized by the correspondent Ministry, and Sworn translated into Spanish. Please note that we use to draft bilingual powers of attorney in order to avoid its sworn translation.

                The foreign shareholder will have to prove that its income is obtained from legal activities in order to be able to open a bank account in the name of the new company. The main document to prove this could be the Corporate or the Personal Income Tax return filed in its country of residence, but there could be other means, especially in case of individual persons.

                In case of a corporate shareholder, it will be necessary as well to declare, in principle through a public deed granted in Spain, who are the individual persons who, directly or through other companies, will hold more than a 25% interest in the new company to be incorporated. In case nobody holds more than a 25% (i.e. because there are 5 individual shareholders, holding each of them a 20%), it is declared that the effective control of the new company corresponds to its director.

                At this stage, it is also necessary to mention that the person(s) who will be the director(s) of the new company, in case they are foreigners, will also need to obtain their personal “NIE”. The NIE should be applied for before the Spanish police (this could be done by a proxy duly authorised though a Power of Attorney granted by the foreign director) or before the Spanish Consulate nearest to the city where the investor lives. In order to be a director of a Spanish company it is not necessary to be a shareholder, nor to have residence and work permit in Spain (provided the foreign director does not live in Spain).

                Meanwhile the necessary documents (Powers of Attorney, Companies’ Registry certificate, etc.) are being prepared by the foreign shareholder, the lawyer in Spain will apply for the new company’s name. It is advisable to point out that generic or usual names are not available quite often, therefore it is necessary to think in original names. Three different names could be applied for simultaneously.

                The drafting of the company’s Articles of Association or By Laws could be very quick, except if the company is going to have several shareholders and they wish specific clauses. In this case, it is also advisable to draft a Shareholders Agreement. The Shareholders’ Agreement could just contain some basic rules on dedication, compensation, non-competition, etc. and some more sophisticated rules on the sale of shares (tag along and drag along rights). As regards the By-Laws, they should mention the company’s name, its activity or activities, address in Spain –which cannot be just a P.O. Box-, share capital, number of shares and its face value, and starting date for the fiscal year, among other standard clauses.

                The management of the company could be organized through a sole director, two directors who could act jointly or separately, and in case there are more than three directors, they should organize themselves through a Board of Directors, being usual in this case to appoint a C.E.O. In order to be a director it is not necessary to be a shareholder. Under Spanish laws, the director(s) could be held liable for some company’s debts under certain circumstances which are legally defined. For this reason, it is necessary that the directors formally accept their appointment (personally appearing before the Notary or through a Power of Attorney).

                Before the incorporation, it will be necessary that either the new company’s director (the person to be appointed) or the representative of the corporate shareholder appears personally before the bank where the company will have its first bank account and signs the correspondent documents (KYC regulation). Once the bank account is opened, the shareholder will have to send a bank transfer for the new company’s share capital. In Spain, the minimum share capital for a limited company (S.L.) is Euros 3.000, while for a “Sociedad Anónima” (S.A.) it is Euros 60.000, but only 25% should be paid off at the incorporation moment. It is interesting to note that contributions to the share capital could be made in cash – which is the most common operation, especially at the incorporation – or in kind, with any type of assets: real estate, machinery, goods, trademarks, etc. The money for the share capital should be sent to the new company’s bank account from an account owned by the shareholder (or from each account owned by each shareholder, should they be several ones), not by any other different person. Once the Spanish bank receives the transfer, it will issue a certificate, which is necessary in order to incorporate the company.

                Once all the documents are ready, it is possible within very few days (almost immediately) to make the appointment with the Notary and sign the public deed of incorporation. This can be done at any notary in Spain, not being necessary that the notary practises at the same city where the company will have its corporate address. In order to summarize, the list of the necessary documents is:

                • Power(s) of Attorney granted by the foreign shareholder(s), apostilled and sworn translated.
                • Certificate regarding the legal existence of the foreign shareholder (only if it is a corporation), apostilled and sworn translated.
                • Statement on who are the last individual shareholders holding more than 25% interest in the new company, directly or indirectly (only in case of corporate shareholders).
                • NIE of the foreign shareholder(s).
                • NIE of the new company’s director(s), should they be a foreigners.
                • Certificate for the new company’s name.
                • Articles of Association.
                • Bank certificate regarding the contribution to the new company’s share capital.

                The deed of incorporation is signed by the proxy (or the individual shareholder(s), should they prefer to personally appear before the notary) before the chosen public notary, being also necessary to sign an official form to report the foreign investment to a public registry depending on the Spanish Ministry of Finance.

                Once the deed of incorporation is signed, the next steps consist in applying before the tax authorities to obtain the new company’s tax number (NIF / CIF) and filing the deed of incorporation before the Companies’ Registry. Some banks do allow new companies to operate once they have the NIF (which could be 2-3 days after the incorporation), while others request to wait until the deed of incorporation is filed at the Companies’ Registry (2-3 weeks).

                An estimation of the necessary time to complete all the procedure is 30-45 days, but of course the main delay is related to speed of the foreign investor in obtaining the necessary documents.

                Please note that if you wish to incorporate a foreign owned company in Spain it is always necessary to seek specific professional advice, as each case is different and regulations and the application of such regulations vary from time to time. The above article just explains the main steps and requirements for the incorporation of a company.

                Arbitration is a well-known system for dispute resolutions, and works as an alternative to judicial procedures. Parties are free to choose this system and to submit their conflicts to specific arbitrators or institutions.

                It is usually considered that arbitration is a good way to solve conflicts but preferable to those arisen between big corporations or involving important amounts of money. Although this assumption is generally accepted, there is an alternative for distribution disputes suitable for smaller companies and cases with lower amounts claimed.

                And here is the essential question: why a manufacturer/franchisor or a distributor/agent/franchisee should choose a specialized arbitration for their agreements instead of a more general one or, even, a judicial procedure? The answer seems clear: an arbitrator with knowledge not only in procedural questions but in substantive matters will be able to better understand the conflict between the parties and, therefore, to grant a better award. Take into account that, for instance in my Country, Spain, a Judge of First instance can deal in the same day with a distribution contract, a construction case, a conflict between heirs, and a discussion in a community of owners. All of this requires the analysis of different facts and completely different legislations and it is true that specific commercial problems do not usually have judges experts in international trading. But, how to choose a good specialized arbitrator? And, how to choose the arbitral procedure and the institution in terms of organization, neutrality, costs and time?

                The IDArb was created in 2016 by the International Distribution Institute (www.idiproject.com) in collaboration with the Chambre de Commerce d’Industries et de Services de Genève (CCIG www.ccig.ch) and the Swiss Chambers’ Arbitration Institution (SCAI www.swissarbitration.org) and offers to the distribution sector (distribution, agency, franchising, selective distribution) a specialized, expedited and affordable arbitration procedure, not only for big international corporations but also for smaller cases. In fact, the expedited procedure is particularly foreseen for amounts below one million CHF (approx. 880.000 €).

                The objectives and main characteristics of IDArb which make it suitable for all the distribution disputes are:

                1. A list of specialized arbitrators experts in this particular field is available for ad hoc or institutional arbitration and IDArb is able to assist the parties to choose one of them.

                Specialized arbitrators from different countries and legal cultures have been appointed by a Selecting Committee reviewing their experience in one or more fields of distribution law. Therefore, parties can trust that the arbitrator will have concrete skills in the business with an in-depth understanding of the disputed issues. This is not a general knowledge on commercial law, but a concrete one on distribution, expressly verified by the Committee. Parties can even examine some examples of cases in which every arbitrator has been involved in.

                1. In order to maintain its high quality, the IDArb organizes training seminars for its appointed arbitrators. In these seminars, they are able to discuss about the general management of the arbitration, the procedural aspects and how to solve possible incidents in collaboration with the Institutions and their Rules. This will make all the proceedings more manageable and the possible difficulties more easily solved. Last seminar took place in Geneva in November 8, 2018 and participants have discussed, amongst other subjects, on evidences, witnesses and document production.
                2. The expedited arbitration procedure permits the parties to have a tailored procedure managed by SCAI under the Swiss Rules of International Arbitration, specially adapted for small disputes in the field of distribution.
                3. Time is also an essential element: the award in the expedited procedure will be issued in a maximum term of six months (only exceptional circumstances permit the Court to extend such time-limit), and, if parties agree, it can be decided only on documentary evidence.
                4. Costs are reasonable and known in advance.
                5. And, as final but important remark, IDArb has also adopted some recommendations where, upon request of the parties, mediation is favoured, the arbitrator my consider giving a preliminary non-binding and provisional assessment of the dispute and should have a pro-active position in order to facilitate an amicable settlement.

                西班牙企业家法 (第14/2013号法)准予了非欧盟国家的外国人可以通过执行投资获得西班牙的居留许可的条件：

                1. 房地产的投资金额等于或高于500,000欧元（五十万欧元）。投资可以在一个或多个房产中进行，但至少500,000欧元应该没有产权负担（抵押贷款，即）。如果价格高于500,000欧元，其余金额可以通过抵押支付。
                2. 金融投资金额等于或高于100万欧元。此类投资包括上市和非上市股票，如果是非上市股票，则可能来自已经运营的公司或新成立的股票，投资基金和西班牙银行的存款。
                3. 对西班牙主权债务的投资，金额等于或高于200万欧元。
                4. 在西班牙进行一项符合公共利益的商业项目。为此，应满足其中一个条件：创造就业机会，执行对其所在地区产生积极影响或对科学或技术创新作出相关贡献的投资。

                通过这种执行投资准予的签证至少有一年的效期。为了获得居住证，必须具备下列条件:

                • 年满十八岁
                • 没有犯罪前科
                • 有健康险(由在西班牙营业的公司聘用)
                • 拥有在西班牙居住的经济手段（即银行存款，或租赁或股息收入。工资单不符合此目的）。

                具备上述条件，可以准予两年居住和工作许可。两年后，居留许可可延长五年。

                在所有这些期间的投资都应该被保留。这个许可不需要外国人在西班牙居住超过六个月；因此，如果外国人居住在其他国家，这个许可也不会被取消。

                居住和工作许可证授予执行投资的个人。如果他/她已婚并且/或者有孩子或祖先依赖投资者，则可以同时或稍后申请签证。通过投资者拥有的公司可以执行投资，前提是该公司营业地不在免税区。

                西班牙居住许可证允许在欧盟国家（申根地区）内的自由流动。有效的旅行证件是护照。

                愿意在西班牙开展自营职业项目的外国人可以获得工作和居留许可，但通过与上述不同的程序。在这个情况下，最低投资额较低。

                房地产投资

                房地产投资可以涉及住宅，商业或工业产权。该产权可在收购前或收购后租赁给第三方，或由投资者使用。对于雄心勃勃的投资者而言，有几种可能性来构建对建筑物和公寓的投资以及更高的投资回报。

                相关房地产的收购需要支付一些费用：该收购按转让税征税，收购价格为6％至10％。税额具体取决于房产所在的每个西班牙地区，由买方支付。此外，买方应支付公证人和物业登记处的费用，这大约相当于收购价格的3％（两者相加）。购买财产时，这些金额一次支付。

                在西班牙房地产所有权相关的年度成本如下：

                • IBI或当地财产税，其金额根据物业的价值和地点计算。
                • “社区开支”，即与维护建筑物公共区域相关的费用：清洁，照明等。
                • 在某些情况下，还应向市议会支付小额垃圾税。
                • 如果房产未出租给第三方，业主应提交西班牙个人所得税申报表，并支付房产“地籍价值”（官方价值）的1,1％至2％。如果房产是租赁的，业主还应根据从租赁中获得的金额提交个人所得税申报表。

                此外，业主还应支付与其财产有关的费用：普通维护费，保险费，电费和水费等。

                在西班牙，产权被视为一项完全权利。业主可以自己使用该财产，可以将其出租给第三方，可以抵押，可以出售或赠送给任何第三方并且可以通过遗嘱继承给他的继承人。

                所有权人或由他指定的人使用财产的唯一限制是由公民规则确定的有关噪音、宠物、财产外部形象等。

                关于房产租赁，原则上是免费的，房东和房客的权利和义务是双方签订的私人租赁协议和西班牙城市租赁法（Ley de Arrendamientos Urbanos）提供的权利和义务。然而，如今许多西班牙城市（特别是巴塞罗那）已批准对所谓的旅游租赁进行强制限制，这些租约是短期（数天或数周）租约，并要求获得特别许可。

                需要指出的重要一点是获得西班牙居住许可证的外国人可以准予根据西班牙继承法（根据欧盟法规650/2012）授予他们的遗嘱。这些法律根据每个西班牙地区有不同。比如，在加泰罗尼亚立遗嘱者可以任命继承人。

                金融投资

                金融投资可以通过不同的目标执行，最低金额一百万欧元。

                • 在西班牙股票市场上市的公司股份。
                • 非上市公司的股份，可能是非上市公司经营公司或新成立的公司。 在这两种情况下，外国人可以拥有的股份比例没有限制，而非欧盟外国投资的活动部门很少（赌博，国防，航空，电视和广播）。 外国人可以被任命为西班牙公司的董事，唯一条件是先前获得所谓的“I.E.”，这是外国人的西班牙身份证号码。

                有新成立公司的情况下，要求投资的100万欧元将是公司的股本，并可用于公司的活动启动：例如，收购货物、支付工资和租金、支付供应商和分包商等

                西班牙公司进入欧洲市场，并且享有与拉美国家进行贸易的特权地位。

                • 投资基金：西班牙金融实体提供范围广泛的投资基金，从非常保守到高风险。

                银行存款

                房地产投资与金融投资相比，房地产投资的主要优势在于所要求的金额仅为房地产500,000欧元，而金融投资则为此金额的两倍。企业家法

                自“企业家法”生效以来，房地产投资一直是获得西班牙居留许可的最受欢迎的方式，可能是因为当时（2013-2016）房地产市场价格相当低,因为2008年的崩溃。

                然而,在西班牙购买房地产的过程与购买投资基金的股份或存入银行相比并不那么容易:投资者应该选择房地产(通常需要一次或两次访问西班牙)、价格和销售条件必须经过协商和起草，购买契约必须在公证人面前由投资者或其代理人签署，有与收购相关的税费和费用;购买房产地以后，就必须支付发生的费用和税款，并保持财产状况良好。

                与此相比，投资于资金或银行存款只需要投资者到银行一次，才能签署相关文件。没有相关的税收或费用，投资的流动性是充分的（即投资可以随时出售，很可能是以同样或更高的价格出售，但这对房地产投资没有保障）。

                如何在西班牙开设和经营银行账户

                在西班牙银行适用有关反洗钱的规定，其中包括KYC (了解你的客户Know Your Client)规则和证明基金合法来源的义务。KYC规则意味着投资者需要至少一次亲自出现在银行面前，在操作银行账户之前。资金的合法来源可以通过以下方式证明:

                • 有员工的情况下，通过工资单拆分，或雇主签发的证书，或投资者的个人所得税申报表。
                • 有自雇人士的情况下，通过个人所得税申报表或其他证明其专业活动的文件。
                • 有公司所有者的情况下，则通过公司的财务报表。
                • 如果投资者通过个人贷款获得了投资所需的资金，则应提供贷款协议，以及证明贷方提供资金合法来源的文件。
                • 可以提供其他文件，例如关于投资者拥有的房产租赁的股息或收入的文件。

                所有文件应由公证人或西班牙领事馆认证，并宣誓翻译成西班牙文。

                请您注意，本文章的目的是提供关于上述主题的西班牙法规则的一般概述，但本文的内容并不提供详尽的信息。做出任何决定之前，应该寻求法律咨询。

                In all M&A operations one of the issues that deserves special attention as regards its analysis, ascertainment and negotiation is the tax liabilities. Even though the parties could agree on the amount of such contingencies, to negotiate the possible guarantees that the seller should grant in order to protect the buyer from a possible claim by the tax authorities, the term during which the guarantees should be in force, and to agree on the communication mechanisms between the parties (buyer and seller) and the legal defense strategies if such claim from the tax authorities arises, requires substantial negotiation efforts.

                When the acquisition operation is formalized not through the purchase of shares, but through the purchase of the assets that form a business unit, the Spanish General Tax Law (“Ley General Tributaria” or “LGT”) provides a mechanism which implies an exception to the general principle provided by article 42 of the same law. Article 42 of LGT establishes the joint liability of the purchaser of a business unit for the tax liabilities of the selling company (“tax liability derived from company’s succession”). That is, in principle, according to article 42 of the LGT “the persons or entities that continue by any mean in the ownership or exercise of economic activities (the buyers) will be jointly liable with the previous owner for the tax liabilities derived from the exercise of such economic activities incurred by such previous owner”.

                However, the joint tax liability of the buyer could be limited through the application before the tax authorities of the tax certificate regulated by article 175.2 of the LGT. This certificate should be applied for by the prospective buyer, with the authorization of the present owner (the seller), and, once issued, the tax liability of the buyer becomes limited to the debts, penalties and liabilities mentioned in the certificate. If the certificate is issued without mentioning any amount, or if the tax authorities do not issue it within a three months term from the application’s date, the applicant (the buyer) will be released from any tax liability derived from company’s succession.

                The tax certificate for succession purposes includes the main taxes, as Value Added Tax and Corporate Income Tax, and can include as well debts derived from the withholding taxes on employees’ payroll, which in case of companies with a big number of employees could be of an outstanding amount. However, the buyer’s joint liability for salaries, related payroll amounts and social security contributions cannot be limited by such certificate, and such liability will always be joint with the business unit seller’s liability.

                The application for the tax certificate should be filed before the acquisition of the business unit is completed, even if the issuance of the certificate takes place later tan the closing date (but of course, it is wiser to not close the acquisition before having the certificate). The certificate’s validity lasts for one year, as regards periodical tax obligations (for example, Value Added Tax, Corporate Income Tax and withholding taxes on salaries) and for three months as regards non periodical tax obligations.

                It is very important to apply for the right tax certificate (“certificate for succession purposes according to article 175.2 of LGT”), and to not make a mistake and apply, for example, for the certificate regarding having fulfilled all tax obligations (“certificado de estar al corriente de las obligaciones fiscales”). Case law is plenty of judgments where a buyer applied for the wrong certificate, which showed no liabilities, and later on such buyer has been sentenced to pay the tax liabilities incurred by the previous owner of the business unit.

                根据西班牙最高法院的既定判例，如果《代理法》第28条以类推的方式适用（“激励的方法”）那么分销商有权因在分销合同期间与顾客签订的销售合同使供应商盈利而向供应商要求赔偿（以下简称“赔偿”）。对代理商的补偿是基于过去五年收到的酬劳。

                然而，在分销合同中，并不存在诸如代理商收到的报酬（佣金、固定金额或其他报酬），而是“商业利润”（购货价和转售价之间的差额）。那么，问题是，在分销合同中，对赔偿数额的考虑：要么是“毛利”（即前面提到的购买价格与转售价格之间的差额），要么是“净利”（即相同差额，但扣除分销商承担的其他费用和税款）。

                到目前为止的结论似乎是根据分销商的“毛利”来计算他的赔偿，因为这一数额与代理商的“报酬”更加相似：分销商的其他费用和税款不能扣除，就像在代理合同中的其他费用和税款也不能被扣除。

                最高法院曾指出（1999年11月17日），为了计算赔偿数额，“更适当的做法是将其视为总缴款，因为代理人必须用它来支付其商业组织的所有付款”。此外，“获得的收入”“不构成同一意义上的报酬”（2008年10月21日），因为这种“收益”“属于代理人自己组织的内部范围”（2012年3月12日）。

                然而，最近最高法院在2017年3月1日的判决中（2017年5月19日的另一项判决确认）认为，分销合同中赔偿金额的确定不能以分销商获得的“毛利”为依据，而只能以“净利”为依据。为了得出这一结论，法院援引了2016年同一法院的一项判决，以及2010年和2007年的其他判决。

                这是否意味着判例法的改变？我认为，最高法院的这一判决是不正确的。让我们一起看一下原因。

                在2017年3月的判决中，毛利或净利之间的脱节在第二次法庭辩论中被提及，并引用了2016年的裁定。

                在2016年的判决中，据说，虽然在2010年的另一个判决中，没有得出是否必须按毛利或净利计算的结论，但在2007年的前一个判决中，承认了与代理的报酬类似的是分销商获得的净利润（扣除费用和税款后的利润），而不是购买和转售价格之间的差额。

                The remuneration of directors is an intricate issue and one that deserves adequate treatment. Recently there has been a turn that deserves special attention.

                In its judgment of February 26, 2018, the Supreme Court modified the interpretation given by most experts and authorities and by the Directorate-General of Registries and the Notarial Profession in its decision dated June 17, 2016, ratified by the Barcelona Provincial Appellate Court in its decision 295/2017 of June 30, 2017, on the regulation of executive directors’ compensation.

                In its judgment, the Supreme Court held that the compensation of directors “in their capacity as such” includes the compensation of both deliberative and executive functions and that, accordingly, approval of the compensation of directors who discharge executive functions is subject not only to article 249 of the Corporate Enterprises Law (i.e., the requirement for there to be a contract approved by a two-thirds majority of the board) but also to article 217. Consequently:

                1. the bylaws must stipulate the compensation scheme for executive functions (although no reference is made to amount); and
                2. the amount payable for the discharge of executive functions must be included in the maximum annual amount stipulated by the shareholders’ meeting.

                The judgment was handed down in connection with a limited liability company and, furthermore, some of its considerations refer specifically to unlisted companies, although it does not clearly and indubitably exclude listed companies (which are, however, subject to specific rules under the compensation policy).

                The publication of this Supreme Court judgment gives rise to the need for an individualized analysis of each specific case, so that the appropriate measures can be taken to enable companies to bring their policies into line with its conclusions.

                The author of this post is Pablo Vinageras.

                Once convinced of the utility of mediation as a method of resolving conflicts between franchisor and franchisee and taken the decision to include a clause in the contracts that provides for it, the last step would be what elements should be taken into account when drafting it.

                1. The previous negotiation. It seems advisable that both parties grant themselves the possibility of trying to solve the problem with a previous formal negotiation. Mediation does not exclude the previous attempt made by the interested parties or their lawyers; however, it seems advisable to contractually provide a suitable end according to the circumstances. Experience shows that lengthening this phase too long may result in the conflict becoming more complicated and even more difficult to approach mediation.
                2. The clause may also provide for the place where the mediation will take place. Again at this point the parties are free. It is convenient that this is accurate indicating the concrete city.
                3. The language in which the mediation will be developed is the a faculty of the parties. There will be no difficulty in mediations in which both parties use the same language, but it is very convenient in contracts with parties that have different languages, or that belong to regions or countries with different co-official languages. The drafting or signing of the contract in a specific language does not presuppose that this must be the language of the mediation. It is an element to be taken into account also when requesting a mediator who can use that language in the chosen mediation institution.
                4. The procedure can also be decided by the parties. In particular, the number of sessions, the maximum expected duration, the participation of advisors, etc. Keep in mind that the greater or lesser regulation will allow to avoid future conflicts in this respect, although it will also imply a greater limit to the freedom of the parties that, nevertheless, will remain free to modify the agreement by mutual consent.
                5. The term of the mediation can also be contemplated. This would allow, for example, to prevent mediation from being extended only for purely procedural strategic purposes or to gather information from the other party before starting a procedure, etc. The professional mediators, however, are able to identify these manoeuvres, also having the power to put an end to mediation in those cases.
                6. Choosing the mediator or the mediation institution is an important choice. The parties can agree on who will be their mediator, indicate in the contract the elements to choose it, or submit directly to a Mediation Institution so that it is the one who designates it according to its own rules. These decisions can be alternatives (that is, that the parties agree on the mediator and, in case of lack of agreement, submit to an institution that names it), or they can be unique. The designation of an Institution requires that it has a sufficient guarantee of stability (avoid designating short-term institutions or without much future guarantee), with a sufficient panel of mediators depending on the characteristics of the mediation (language, competence, experience) and that allows the necessary flexibility for its operation.
                7. Finally, it is convenient that the clause includes an alternative way in case the mediation does not succeed either because the parties do not reach an agreement, or because they withdraw from the mediation. It is important to recall that mediation does not close the doors to the conflict be resolved by recourse to ordinary jurisdiction or arbitration. And in terms of specialized arbitration in distribution contracts, the IDArb (https://www.idiproject.com/content/idarb-idi-arbitration-project) is an excellent option.

                On the topic of the importance of Mediation in Distribution Agreements, you can check out the recording our webinar “Mediation in International Conflicts”

                Javier Gaspar

                业务领域

                • 仲裁
                • 分销协议
                • 特许经营
                • 诉讼
                • 体育
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