Commercial dispute: Legal procedures and remedies

In a dispute between businesses, the outcome is rarely decided at the hearing. It is decided well before, on three elements: the quality of the evidence built up during the relationship, compliance with limitation periods, and the choice of procedure brought. A certain debt can be lost for lack of evidence; a perfectly documented debt can be lost for failing to act in time. This article follows the order in which these questions actually arise.

Before any proceedings: formal notice

A formal notice is not a preliminary courtesy — it produces legal effects of its own. It triggers default interest, it marks the starting point of several deadlines, and its absence can render a subsequent claim inadmissible where the contract or the law requires it.

To be effective, it must precisely identify the unperformed obligation, state the amount claimed, set a reasonable deadline for compliance, and be sent by a means that can establish its date of receipt. A reminder sent by ordinary email does not satisfy this last condition.

Amicable methods, often mandatory

Many commercial contracts include a prior conciliation or mediation clause. This is not a formality: bringing a claim before a judge without having complied with this clause runs into a bar to admissibility, and the action is declared inadmissible. The first step, before filing suit, is therefore to re-read the contract's provisions on dispute resolution.

Three routes coexist:

• Mediation, where a third party helps the parties build a solution themselves.
• Conciliation, similar in spirit, often conducted by a court-appointed conciliator.
• Arbitration, which results in an award having the authority of res judicata. It requires an arbitration clause, valid between businesses, and its cost generally reserves it for significant matters.

An agreement reached through mediation can be approved by the judge, which gives it enforceable force. This is what distinguishes a well-constructed settlement from a mere moral commitment.

Judicial procedures according to urgency and the degree of dispute

The choice of procedure depends less on the amount than on the degree to which the debt is disputed.

The payment order procedure is a non-adversarial, fast and low-cost procedure. The judge rules solely on the creditor's documents. Its weakness mirrors its strength: the debtor has one month to file an objection, which sends the matter to an ordinary procedure. It is therefore suited to debts that are unlikely to be disputed.

Interim relief for provisional payment allows quick recovery of a provisional payment where the obligation is not seriously disputable. This is the decisive criterion: even a weak but reasoned objection is enough to defeat the interim application. Used well, it settles the dispute in practice, as the provisional payment often covers the entire debt.

The merits procedure before the commercial court is required as soon as the dispute concerns the interpretation of the contract or the reality of its performance. It is longer, but it alone finally resolves the disagreement.

The deadlines that cause debts to be lost

This is where businesses lose the most rights without realizing it.

Between businesses, an action is in principle time-barred after five years from the day the holder of the right knew or should have known the facts enabling them to act. Where the counterparty is a consumer, the period applicable to the business's action is shorter. These distinctions and their starting points are detailed in our article on the limitation period for commercial debts.

In addition to these deadlines, there is the regime of payment terms: the legal cap agreed between businesses, late-payment penalties due automatically without a reminder, and the flat-rate compensation for recovery costs owed for each overdue invoice. These amounts do not need to be claimed to be owed, but they must appear in the general terms and conditions to be easily enforced.

Evidence, which decides everything else

Between businesses, evidence is in principle unrestricted: it can be established by any means. This freedom is an advantage, provided something has been created to produce.

In practice, three elements decide the outcome: the contract or the accepted general terms and conditions, proof of the order and delivery, and the history of exchanges. The sensitive point is almost always acceptance: producing general terms and conditions is not enough — it must be established that the counterparty was aware of them and accepted them before entering into the commitment. Our article on the acceptance of general terms and conditions addresses precisely this point.

This is also why formalizing commitments has direct defensive value. An electronically signed commercial contract provides the content, the date and the identity of the signatories all at once, within a set whose integrity can be demonstrated — precisely the three elements a defendant will seek to challenge. The evidentiary value of an electronic signature in a dispute depends precisely on the quality of this evidence file.

Usage scenarios

Undisputed unpaid invoice. The payment order procedure is the most effective route. The file must contain the invoice, the purchase order or contract, proof of delivery, and the formal notice that went unanswered.

Client disputing the quality of the service. The payment order and interim relief routes are ruled out once the dispute is reasoned. The merits procedure becomes necessary, and the focus shifts to proving that performance was compliant.

Commercial relationship abruptly terminated. The issue is no longer payment but notice period. The length of the relationship and the volume of business determine the notice period that should have been observed, and the damages are assessed on the margin lost during that period.

Frequently asked questions

Is a formal notice always required? It is not always required on pain of inadmissibility, but it triggers default interest and marks the starting point of several deadlines. Skipping it weakens the case with no benefit.

What is the deadline for taking action between businesses? In principle, five years from the date the facts enabling action were known. Specific deadlines exist depending on the nature of the action and the status of the counterparty.

Is the payment order procedure always suitable? No. The debtor can file an objection within one month, which sends the matter to an ordinary procedure. It is only worthwhile if the debt is unlikely to be disputed.

What does a debt that is not seriously disputable mean? This is the condition for interim relief for provisional payment. A reasoned objection, even if only partly well-founded, is enough to defeat the application, which must then be brought on the merits.

Is a prior mediation clause binding? Yes. Bringing a claim before a judge without having implemented it exposes the party to a bar to admissibility and inadmissibility of the action. The contract must be re-read before any court filing.

Does an email exchange count as evidence? Between businesses, evidence is unrestricted and an email is admissible. Its strength depends on what it establishes: an agreement on price and subject matter carries more weight than a discussion without a conclusion, and its date must be verifiable.

Key takeaways

Three questions arise in order, and are handled in the reverse order of their apparent urgency. Limitation first: it extinguishes the right itself, and no quality of file can make up for an expired deadline. The contractual amicable settlement clause next: ignoring it renders the action inadmissible, regardless of its merits. Finally, the choice of procedure, which depends on the degree of dispute rather than the amount.

Before all of this, evidence remains decisive. Between businesses, it is unrestricted, which is an advantage only for those who have created something to produce. The cases that are won are those where the content of the commitment, its date and the identity of the person who made it cannot be seriously challenged.