The role of your lawyer in managing your commercial disputes

Commercial relations are a source of major disputes. Whether you are a retailer or an individual, call on your expert commercial lawyer for comprehensive support with your commercial disputes. This area is becoming increasingly complex as business relationships become more international and trade becomes more paperless. Here’s everything you need to know to assert your rights in a commercial dispute. And so obtain an amicable or judicial resolution to your dispute.

What is a commercial dispute?

A commercial dispute is a conflict that arises in the course of a commercial transaction. It may concern two merchants in their contractual relations (suppliers, service providers, etc.), or arise between a merchant and an individual (customer). In practice, it concerns a variety of problems such as late delivery, product or payment defects, breach of commercial relations and many other breaches of the commercial contract.

Commercial relationships are governed by the specific rules of commercial law. These rules, set out in the French Commercial Code, are better adapted to the speed of transactions and the needs of the market and businesses. They nevertheless emphasise the security of trade and consumer protection. The specific nature of commercial disputes lies first and foremost in a dedicated judicial institution. It is dealt with by the Commercial Court, which is made up of consular judges. These lay judges come from the business world and are elected by their peers.

Commercial law covers two main areas: economic law and business law. There are many areas of conflict, such as company law, the performance of a sales or service contract, the renewal of a commercial lease or intellectual property rights. The lawyer assists the company from the choice of corporate form through to securing its contractual relations, both in France and abroad. He also acts in the event of the company’s insolvency (collective proceedings) or disputes between partners.

Different types of commercial dispute to settle with your lawyer

Failure to perform a contract

The most common commercial disputes involve various incidents in the performance of the contract.

• Late delivery or failure to deliver may justify the payment of contractual penalties to the buyer. The buyer may also bring an action before the Commercial Court.
• Goods that do not conform to the sales contract (model, quality, condition, colour, etc.) may also entitle the injured party to hold the trader liable.
• Failure to pay, or non-payment, refers to a situation in which a debtor has not paid its debt to its creditor, justifying action to obtain an amicable settlement (settlement with penalties) or legal action.

Abrupt termination of commercial relations

Article L. 442-1 of the French Commercial Code provides that the termination of an established commercial relationship gives rise to liability on the part of the person who terminates it, if the termination is made without prior written notice that takes account of the duration of the commercial relationship, with reference to industry practice. Although the law does not specify the concept of an established relationship, case law has defined its contours. In practice, the concept of an established commercial relationship is based on the existence of a regular and significant flow of business. The penalties can be severe. The assistance of a commercial lawyer is therefore necessary to obtain the best possible compensation if you are in the position of the injured trader, or to limit the amount of damages in the opposite case.

You may also be penalised for improperly breaking off talks. Discussions take place during pre-contractual negotiations. These discussions mainly concern the price, the obligations and liability of the parties, and the duration of the commitment. This negotiation phase does not systematically lead to the conclusion of a contract. But it does commit the parties to the discussion. In certain cases, the party responsible for the breach of contract may be held liable if it can be shown that there hasbeen a loss (financial loss, loss of profit).

Unfair competition

Acts of unfair competition are very common in commercial disputes. Parasitism, imitation of a trade name, denigration of a brand, etc. Unfair competition covers all abuses in a company’s commercial practices towards its competitors. Unfair competition can also arise from the breach of a non-competition clause by a professional setting up in a sector, despite the commitment made in the clause.

See our articles on unfair competition and customer misappropriation.

Your lawyer’s role in resolving commercial disputes

Anticipating to avoid litigation

Consider calling in your commercial lawyer to carry out an audit of the risks present in your company and to secure your commercial relations. Benefit from effective risk management thanks to your experts who identify the risk of litigation well in advance.

For example, contact your lawyer for advice on :

• The commercial agent contract and the specific features of its status;
• The status of other commercial intermediaries: business introducers, sales representatives, etc;
• The risk of the intermediary’s contract being reclassified as an employment contract;
• Franchise agreements;
• Hidden defects and other defects in goods;
• Drafting contractual clauses to penalise unfair commercial practices;
• Defects in delivery and unpaid invoices;
• Penalties for unfair breach of contract…

Finding an amicable solution

Your law firm can also assist you in pre-litigation or settlement negotiations. We can help you quickly resolve disputes relating to unfair termination of commercial relations, contractual liability or unfair competition.

Lawyers can also assist their clients in reaching an amicable resolution to disputes before a sworn conciliator. The conciliator makes proposals for solutions, the aim being for the parties to reach a memorandum of understanding.

Finally,arbitration can be used to resolve commercial disputes. Arbitration is generally provided for in an arbitration clause incorporated into the contract. However, arbitration decisions are binding on the parties.

Taking a commercial dispute to court with your lawyer

As the last resort for settling your dispute, the competent court depends on the nature of your dispute and the status of the parties to the dispute (private individual or professional): commercial court or magistrates’ court. Your lawyer will assist you in taking legal action, sometimes in summary proceedings when the urgency of the situation requires it (blocking counterfeit goods, for example). Your commercial lawyer gathers the evidence necessary for your defence and represents you in court.

With its team of experts, Goldwin Avocats is your preferred partner for anticipating the risk of conflict and resolving your commercial disputes. Contact your commercial lawyer!