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  • Intellectual property framework

    Overview

    Protection of intellectual property rights is required by the Federal Constitution and by several multilateral treaties. The main statutes in this area are federal statutes. However, in case of litigation, some matters are subject to federal jurisdiction, and others to provincial jurisdiction.

  • Commercial contract framework

    Overview

    Commercial contracts are governed by the Civil and Commercial Code. This code came into effect in 2015 and it replaces the previous separate Civil Code and Commercial Code. It is part of the federal legislation, but jurisdiction regarding its implementation and litigation resulting thereunder corresponds primarily to the provincial courts.

    The Civil and Commercial Code includes general provisions on contracts, which are applicable to all contractual transactions. These provisions govern matters such as the formation of contracts, offer and acceptance, possible subject matter of contracts, legal formalities, the legal effects of contracts, contract termination and others.

    In addition, the Civil and Commercial Code includes provisions applicable to specific types of contracts, such as sale agreements, leases, franchise agreements and agency agreements. More than 30 types of agreements are subject to specific provisions of this kind. These specially regulated agreements are thus subject to the general rules applicable to contracts –described above – and to the special rules applicable to the relevant type of agreement. Agreements that are not subject to special rules are nevertheless valid, and they are governed primarily by the general contract rules and – to the degree possible – by the rules applicable to analogous specially regulated contracts.

    Other laws include provisions on specific types of commercial contracts. For instance, the Copyright Law includes certain provisions of contracts related to software and to publishing; the Patent Law includes rules on license agreements; and the Insurance Law includes rules on insurance contracts. However, in all these specially regulated contracts, the general contract law rules included in the Civil and Commercial Code are also applicable.

    Commercial contracts with the federal or provincial governments or with other governmental entities are also governed by administrative law. Special rules on contracts with state entities have been included in federal or provincial laws, or have been developed by case law.

  • Copyrights

    Nature of right

    Copyright protects intellectual creations in all fields of science, art and literature. Article 1 of the Copyright Law includes a non-exhaustive list of possible intellectual works protected by copyright. These include, among others, literary and artistic works, music, architectural works and software.

    Copyright protects intellectual expressions, but not ideas. For example, the contents of a book in terms of sentences and other literary expressions are protected by copyright, but the creative idea underlying the book as a whole is not.

    Copyright results from the creation of an intellectual work. Registration is not necessary for copyright to exist, although it is necessary for the exercise of some rights by local authors. Upon creation of a protected work, copyright belongs to the original author or authors, who then may transfer their right, by contract or by the operation of certain legal rules.

    Copyright includes economic and moral rights. Economic rights consist, basically, in the exclusive right to use and exploit the protected work. The Copyright Law lists some of the elements of this exclusive right, such as the right to reproduce the relevant work, to market copies, to prepare derivative works or to have the work performed publicly.

    Moral rights include the so call "integrity right" – that is, the right to preserve the text, title and other contents of the work, even if property rights on such work have been assigned; the "paternity right," the author’s right to be named and identified as such together with the work; the "publication right," the right to decide whether the right will be published; and the "alteration right," the right to modify the work, even after it has been published. Moral rights belong to the author and they are generally non-assignable.

    Legal framework

    Copyright law is included in Law 11, 723, as amended. In addition, multiple laws and regulations govern matters such as related rights, publishers' rights and collective management societies.

    Argentina is part of the main multilateral international copyright agreements, such as the Trips Agreement, the Berne Convention and the Rome Convention. The provisions of these agreements are actively enforced by the courts.

    Duration of right

    The general rule is that copyright protection lasts for a term of seventy years, counted as of January 1 of the first year after the death of the author, as well as through the life of the author.

    In the case of work done through cooperation, the 70-year term is computed from the death of the last person who participated in the joint authorship of the work involved.

    In the case of posthumous works, the 70-year term is computed from the death of the author.

    The duration of protection of anonymous works whose copyright belongs to institutions, corporations or legal entities is 50 years from the date of publication of the work.

    Special rules on copyright duration apply to specific types of copyrightable works, such as photographs and cinematographic works.

    Ownership / licenses

    The basic rule is that ownership belongs to the author. Special rules have been developed in connection with special types of works, such as cinematographic works, derivative works and software.

    There are several types of joint ownership. It may apply to works done through cooperation, which imply a creative collaboration between different authors; to collective works, which are those created through the initiative or direction of one or more individuals, who coordinate or direct the efforts of several other individuals to achieve a joint result; and to composite works, which are the result of adding different separate works, each with a possible separate author and owner, into one final result.

    Works created by employees who have been hired for that purpose belong to the employer.

    Copyright may be subject to licenses, generally as part of broader contractual arrangements such as publishing agreements.

    Remedies for infringement

    Damages may be claimed before civil courts for all types of copyright violation. Registration of works is not necessary, except for local authors, whose rights may be suspended until registration takes place.

    It is also possible to file civil action to prevent further copyright violation, and to obtain preliminary remedies, such as injunction, in the course of civil procedures.

    Criminal remedies, particularly fines, are possible, but are not frequently applied.

  • Mask works / topographies

    Nature of right

    Mask works and topographies are not separately protected under Argentine law. They may be protected under patent law or by way of confidentiality.

    Legal framework

    Argentina has enacted no specific rules on chip protection. Although Argentina is part of the WTO and has approved the Trips Agreement, it has not yet implemented any rules on chip protection.

    The provisions on chip protection included in the Trips Agreement have not been deemed immediately applicable under Argentine law. In addition, Argentina has not ratified or implemented other multilateral treaties on chip protection, in particular the Treaty of Washington of 1989.

    Semiconductor technology, generally, and topographies, in particular, may be protected under the traditional intellectual property rules applicable to all types of technology, specially patent law and the rules on confidential information. Therefore, matters such as the duration of the relevant rights, ownership and remedies depend on the type of protection used in connection with each specific mask work or topography.

    Duration of right

    Not applicable for this jurisdiction.

    Ownership / licenses

     Not applicable for this jurisdiction.

    Remedies for infringement

    Not applicable for this jurisdiction.

  • Patents

    Nature of right

    Patents are a statutory right. The granting of patents is required by the Argentine Constitution and by different international documents, particularly the Trips Agreement. Patent rights imply an exclusive right to exploit a process or a product. The Argentine Patent Law defines the limits of these exclusive rights, on the basis of the provisions of the Trips Agreement.

    Legal framework

    Patents are governed by the Patent Law – Law 24,481, as amended. In addition, they are governed by the Trips Agreement and by the Paris Convention. Argentina is not a party to the Patent Cooperation Treaty.

    Duration of right

    The basic rule is that patents expire 20 years after the date in which the relevant patent application was filed. Argentina uses a "first to file" system, but it also applies the priority rules derived from the Paris Convention.

    Argentine law provides special rules on compulsory licenses and on patent termination due to lack of exploitation of the patented invention. Compulsory licenses may be granted in case of non-exploitation, competition law violations or sanitary emergencies, among other cases. Patent termination may result when, after a compulsory license was granted for lack of exploitation, no exploitation of the invention takes place for two years after the license was granted.

    Ownership / licenses

    Joint ownership is permissible. The Patent Law includes provisions on the exercise of patent rights by the joint owners. In addition the Civil and Commercial Code rules on joint property apply to patents.

    The Patent law includes rules on licenses. Licenses are not exclusive, unless the parties provide otherwise. Competition law rules are applicable to restrictive clauses included in license agreements.

    Remedies for infringement

    The Patent law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and termination of the infringing activities.

    A complex system of rules for preliminary remedies in patent cases is included in the Patent law. Generally, suspension of an alleged infringer's exploitation requires a preliminary procedure, with the participation of expert witnesses.

    Criminal procedures and sanctions are rare.

  • Trademarks

    Nature of right

    A trademark may consist of one or more words, with or without conceptual content, drawings, commercial symbols, monograms, engravings, prints, seals, images, stripes, color combinations, letter and number combinations, the special graphics of letters and numbers, advertisement phrases, reliefs, and any other sign with distinctive capacity.

    A trademark is normally protected by means of its registration. However, de facto trademarks, that is those that are used but not registered, are also protected in a more limited way.

    Legal framework

    Trademarks are governed by the Trademark Law – Law 22,362, as amended.

    In addition, trademarks are protected by the rules included in Trips Agreement and in the Paris Convention.

    Duration of right

    Registered trademarks are protected for a period of ten years, from the moment of registration. Trademark registration may be renewed indefinitely.

    Registration may be cancelled for lack of use during a period of five years. In addition, renewal of registration requires proof of the trademark's prior use.

    Ownership / licenses

    Ownership is acquired by means of registration. However, use of unregistered trademarks may result in certain rights for the user.

    Trademarks may be subject to joint ownership. The Trademark Law and the Civil and Commercial Code provide the rules applicable to these joint ownership relationships.

    Trademark licenses are possible. They are valid even if they are not registered with the trademark office.

    Remedies for infringement

    The Trademark Law provides both civil and criminal law remedies for cases of infringement.

    Civil remedies include the compensation of damages and the termination of the infringing activities.

    Special preliminary remedies are applicable in cases of trademark infringement. The trademark owner may obtain an injunction against the infringer, when the trademark is registered and its violation is immediately evident.

    Criminal law remedies are rarely used in practice.

  • Trade secrets

    Nature of right

    Argentine law provides protection for trade secrets and confidential information. A complex set of rules creates rights against conduct whereby access is gained illegally to confidential information, or which implies illegal use of trade secrets or confidential information or which results in the unauthorized and harmful disclosure of confidential or secret information.

    Confidential information is characterized by the fact that it is kept in a reserved manner and that it is not generally available for technicians working in the relevant technical field. Trade secrets receive a special degree of protection, particularly under criminal law.

    Legal framework

    Confidential information is governed and protected by Law 24,766. It is also protected by the Trips Agreement and by the Paris Convention.

    In addition, multiple rules and statutes protect confidential information and trade secrets. Labor law protects the confidentiality and ownership of information used in employment relationships.

    Several criminal law rules apply to special types of violations of confidentiality. In particular, disclosure of trade secrets and unfair competition by means of the illegal use or appropriation of trade secrets are subject to criminal law penalties.

    Duration of right

    Confidential information and trade secrets is protected for as long as the relevant information is kept confidential. The degree of protection diminishes if the information ceases to be objectively a secret, due to its previous disclosure or because it has been obtained independently by other parties.

    Ownership / licenses

    Ownership results from the obtention of the information, accompanied by legal or practical measures aimed at restricting access to that information by third parties. No registration requirement is applicable.

    Joint ownership is possible.

    Trade secret or know-how licenses are common and enforceable.

    Remedies for infringement

    Argentine law provides civil and criminal law remedies for cases of trade secret infringement.

    Damages caused by these violations must be compensated. It is also possible to obtain court orders requiring termination of the violation.

    Preliminary remedies include injunctions against further exploitation or disclosure of trade secrets.

    Criminal remedies are applicable in cases of disclosure of trade secrets acquired in the course of employment and other professional relationship, as well as in cases in which the violation of the rights to confidential information or trade secrets results in unfair competition.

  • Other key IP rights

    Nature of right

    Industrial designs

    Industrial models and designs are protected by special industrial property rights. An industrial model or design consists in the forms embodied in or the aspect applied to an industrial or artisan product, which confer an ornamental character to such product.

    Exclusive rights on industrial models and designs result from registration of the relevant model or design.

    Industrial designs

    Industrial designs

    Legal framework

    Industrial designs

    Industrial models and designs are protected by Decree 6673/1963, as amended. They are also protected in accordance with the Trips Agreement and the Paris Convention.

    Duration of right

    Industrial designs

    The rights derived from the registration of an industrial model or design last for a five-year period, counted from the date of filing of the relevant application. The registration may be renewed for two successive five-year period, if the owner requests such renewal.

    Ownership / licenses

    Industrial designs

    Ownership belongs to the author. There is a rebuttable presumption to the effect that the first applicant of an industrial model or design registration is the author of such industrial model or design. Joint ownership is possible, and is governed by the Civil and Commercial Code and by Decree 6673/1963 as amended.

    Industrial models or designs may be the subject matter of license agreements. No registration is necessary for the validity of these agreements.

    Remedies for infringement

    Industrial designs

    Civil and criminal law remedies are applicable in case of infringement. Civil remedies include the compensation of damages and termination of the violation.

    Preliminary injunctions and remedies are possible in accordance with general procedural rules.

    Criminal sanctions have been recently reinforced, but they are rarely applied.

  • Intellectual property in employment context

    Employees

    Special rules on employee inventions are included in the Patent Law and in the Labor Contract Law.

    There are basically three types of invention, from the perspective of employer-employee relationships. First, inventions made in technological areas for which the employee was hired as a researcher or developer belong to the employer. The employee may be entitled to a special compensation if he or she develops a patented invention which exceeds the normal scope of the employee's work. Second, inventions related to the employee's work or related to the employer's know-how or activities belong to the employee, but allow the employer to exercise an option to acquire rights over the invention. If the option is exercised, the employee is entitled to a payment reflecting the value of the invention. Third, inventions that do not fall into the two previous categories belong to the employee.

    Similar rules are applicable in the case of other types of technology or intellectual property rights. In the case of software, the law applies the “work for hire” doctrine, but allows the parties to agree to different contractual rules.

    Consultants / contractors

    The law is not explicit about the rights of consultants and contractors, who do not qualify as employees, with regard to technology and other intellectual property they develop. Generally, the parties may agree as to the rules which will apply to such rights. In the absence of a contractual framework, the technology or intellectual property generated by a consultant or contractor who was hired with the purpose of developing such items that will belong to the person paying for such work.

  • Key commercial contract considerations

    Registration of commercial agreements

    The general rule is that commercial agreements are not registered, and that their validity and effect is not subject to registration requirements. However, certain types of agreement must be registered to be effective or to have full effects against third parties. Agreements subject to registration include business association agreements, certain publishing agreements, certain chattel mortgages and certain agreements related to real estate. International transfer of technology agreements are subject to registration for tax purposes.

    Recognized language of commercial agreements

    Agreements are generally entered in Spanish. However, it is legally possible to enter agreements written in other languages. These agreements must be translated when presented in court. Spanish language may be necessary in consumer transactions.

    Country-specific issues for online content

    Argentina has ratified the WIPO conventions applicable online content and practices. However, enforcement of these conventions is weak.

    Enforceability of online/clickwrap/shrinkwrap terms

    The general rule is that acceptance of terms included in online, click wrap or shrink wrap elements is valid and effective, provided such acceptance is clearly stated and applies to terms that were known to the person giving the acceptance. However, several rules may limit the effects of agreements entered by these mechanisms, particularly consumer protection rules and rules on adhesion contracts.

    Governing law

    The basic rule is that the parties may agree as to the law that will govern their contractual rights and as to the applicable jurisdiction in case of dispute. This freedom of election is subject to several limitations. Non-Argentine law will not be enforced in Argentine courts if it  is contrary to Argentine public policy. Also, certain matters are necessarily governed by Argentine law. For example, if a business association is created in Argentina, its organization and other corporate aspects will be governed by Argentine law. Decisions made by non-Argentine courts or arbitration tribunals are enforceable in Argentina only after going through a special procedure before the Argentine courts, in the context of which the decision will only be enforced if it complies with certain rules, particularly not violating Argentine public policy. In addition, certain matters – ie, deciding the validity of a patent issued in Argentina – are necessarily subject to Argentine jurisdiction.

  • Key commercial contract terms

    Enforceability of warranty disclaimers

    Argentine law provides certain warranties, generally applicable to all types of contracts implying the transfer of rights. These warranties apply, in particular, to the validity of the rights being transferred and to the fitness of the goods regarding which rights are transferred.

    The general rule is that these warranties may be limited or eliminated by agreement between the parties. However, these disclaimers are totally or partially invalid in several types of cases: if the transferor had prior knowledge of the invalidity of the transferred rights or of the deficiency of the goods involved; if the transferor is a merchant and the parties waiving his or her rights are not; and if the warranty disclaimer is included in a consumer or adhesion contract.

    Enforceability of exclusions/limitations of liability indemnification

    Exclusions or limitations of liability indemnification are valid if they meet the general conditions applicable to contractual. However, they may be unenforceable in the following cases: when they extend to willful violations or defaults, or to violations or defaults resulting from gross negligence; when they are imposed in adhesion or consumer contracts; or when they result in the violation or annulment of rights that may not be removed or limited contractually.

    Indemnification

    The basic rule under Argentine law if full indemnification of economic or moral damages caused by illegal conduct, whether that conduct constitutes a contractual or a tort violation.

    The parties are free to include contractual rules as to the extent of their indemnification obligations.

    Penalty clauses and liquidated damages clauses are acceptable, but they may be limited or amended by the courts if their terms are deemed abusive.

    In the absence of contractual provisions, the indemnification's extent will depend on circumstances such as the willful or negligent nature of the violation, foreseeability of the damages caused and the comparative fault of the parties.

    Electronic signatures

    Electronic signatures are valid and effective under Argentine law. However, certain legal effects require that the signature comply with a special certification regime.

  • Key contacts
    Guillermo Cabanellas
    Guillermo Cabanellas
    Senior Partner DLA Piper (Argentina) [email protected] T +5411 41145500 View bio

Commercial contract framework

Overview

Argentina

Commercial contracts are governed by the Civil and Commercial Code. This code came into effect in 2015 and it replaces the previous separate Civil Code and Commercial Code. It is part of the federal legislation, but jurisdiction regarding its implementation and litigation resulting thereunder corresponds primarily to the provincial courts.

The Civil and Commercial Code includes general provisions on contracts, which are applicable to all contractual transactions. These provisions govern matters such as the formation of contracts, offer and acceptance, possible subject matter of contracts, legal formalities, the legal effects of contracts, contract termination and others.

In addition, the Civil and Commercial Code includes provisions applicable to specific types of contracts, such as sale agreements, leases, franchise agreements and agency agreements. More than 30 types of agreements are subject to specific provisions of this kind. These specially regulated agreements are thus subject to the general rules applicable to contracts –described above – and to the special rules applicable to the relevant type of agreement. Agreements that are not subject to special rules are nevertheless valid, and they are governed primarily by the general contract rules and – to the degree possible – by the rules applicable to analogous specially regulated contracts.

Other laws include provisions on specific types of commercial contracts. For instance, the Copyright Law includes certain provisions of contracts related to software and to publishing; the Patent Law includes rules on license agreements; and the Insurance Law includes rules on insurance contracts. However, in all these specially regulated contracts, the general contract law rules included in the Civil and Commercial Code are also applicable.

Commercial contracts with the federal or provincial governments or with other governmental entities are also governed by administrative law. Special rules on contracts with state entities have been included in federal or provincial laws, or have been developed by case law.

Australia

Australia's commercial contract framework is governed by the common law, supplemented by equitable doctrines, statutes (Commonwealth, state and territory) and international law instruments. There is no codification of the law governing contracts.

For consumer goods and services contracts (a consumer may include a business in certain circumstances), the Australian Consumer Law (ACL) (which is a schedule of the Competition and Consumer Act 2010 (CCA)) applies. This legislation covers purchases of goods or services worth less than $40,000.00, or when the goods or services are of a kind that a person would usually buy for their personal, domestic or household use or consumption. There are also state and territory consumer laws.

The ACL also includes an unfair contract terms regime that applies to:

  • Standard form contracts for a supply of goods or services or a sale or grant of an interest in land to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption
  • Standard form contracts where at least one of the parties is a small business (a business which employs less than 20 people) and the price payable upfront is AU$300,000 or less or AU$1 million or less for contracts with a term longer than 12 months

Commercial contracts with Commonwealth and state government agencies may be subject to additional regulations.

Austria

Austrian law contains extensive federal legislation (of both dispositive and mandatory nature) on commercial contracts, considering both the general principles (such as interpretation) and the specific contract types. In business-to-consumer relationships, the Consumer Protection Act (Konsumentenschutzgesetz) and the Distance and Off-Premises Act (Fern- und Auswärtsgeschäfte-Gesetz) are also of great relevance.

The general principles of contracts as well as a large number of contracts are regulated in the Civil Code (Allgemeines Bürgerliches Gesetzbuch) and Commercial Code (Unternehmensgesetzbuch), including the publishing contract (Sections 1172 and 1173 Civil Code).

Further regulations are contained in the IP-specific acts mentioned above, as well as in statutory laws regulating other specific contract types.

The enforcement of commercial contracts is subject to the general civil proceedings regulations (the Civil Proceedings Act (Zivilprozessordnung) and the Enforcement Act (Exekutionsordnung)) and is conducted by the courts.

Belgium

The Belgian Civil Code, which provides the general principles of contract law, may apply to certain types of commercial contracts (such as exclusive distributorship and commercial agency) and may regulate contracts in specific sectors.

In particular, in respect to business-to-consumer agreements, Book VI "Market Practices and Consumer Protection" of the Code of Economic Law should be taken into consideration, and in respect of E-Commerce, Book XII "Law of the Electronic Economy" of the Code of Economic Law shall apply.

Brazil

Commercial and civil contracts are governed by general principles and provisions established in Federal Law 10,406/2002 (Brazilian Civil Code).

The Brazilian Civil Code also establishes specific provisions for certain types of contracts (eg, purchase and sale, donation, services agreement). Some particular contracts are also governed by special laws and regulations (eg, franchising, leasing, sales representatives, regulated contracts).

Contracts with consumers are subject to special provisions set forth in Federal Law 8,078/1990 (Consumer Defense Code).

The contracts with the Public Administration are mainly governed by Federal Law 8,666/1993 (Public Procurement Law). Certain contracts with the Public Administration are subject to specific laws and regulations (eg, contracts in Energy and Oil and Gas areas, contracts that involve concessions, public-private partnerships, electronic options and Special System for Public Purchases – RDC).

Canada

Contracts, whether they concern IP rights or not, are a matter of provincial, not federal, law. In the common law provinces, contracts are governed by common law contract principles, as modified by a number of statutes such as the Statute of Frauds, Sale of Goods Act and consumer protection legislation. In Québec, contracts are governed principally by the Civil Code. However, other laws such as the Charter of the French Language impose special requirements on the formalities of contracts in Québec. It is worth noting as well that Québec has a civil law system, while the balance of the Canadian provinces have a common law system.

Bankruptcy is a matter of federal law, and under federal bankruptcy legislation, special rules may limit the ability to effect termination of rights upon an act of insolvency or bankruptcy.

There are special rules that govern contracts with the federal and provincial governments.

Chile

Generally speaking, contract law is regulated by the Civil Code, setting forth essential requirements of existence and special requirements depending on the contract. Moreover, it is applied in subsidy to any specific law, including the Commerce Code and Corporations Law that regulates solely the general requirements concerning the incorporation of a company and other commercial issues.

Regarding contract formation, it is possible to identify several prime rules. Firstly, mutual consent shall be expressly and freely declared, further, it needs to be serious and spontaneous, absent of any vice which consists of error, duress and deceit (or malice). Secondly, the contract shall contain a lawful object, that needs to be real and existent and shall be determined or determinable or physically and morally possible if it is an action to be done. Finally, the cause of the contract, meaning the motivation of the act, needs to be real and lawful. The mere beneficence and liberality is sufficient cause.

Pre-contractual documents may also be part of the contract, depending on certain circumstances, through appendixes or additional documents that are understood to be part of one single contract.

Lastly, certain contracts shall be written or another additional formality (such as shares' transfers, real estate purchases, pledges and mortgages, among others) due to their significance. However, and notwithstanding there is no general requirement to do so, most of contracts that involve relevant amounts are written, in order to ensure the proof of its content.

China

The Contract Law of the People's Republic of China (PRC) came into effect on October 1, 1999. The PRC Supreme People's Court promulgated the judicial interpretations regarding the application of the Contract Law during the subsequent years. These interpretations are binding and shall be complied with as laws. The interpretations are about the application of the Contract Law, the application of the Contract Law in real estate deals, the application of the Contract Law with respect to construction contracts, the application of the Contract Law with respect to technology contracts, the application of Contract Law in relation to financial leases, sales of goods, house leases and labor disputes.

With respect to the import and export of technology, the Regulations of the People's Republic of China on Administration of Import and Export of Technologies shall be applicable. Pursuant to the Regulation of Import and Export of Technologies, technologies are divided into three categories: free import/export; restricted import/export; and prohibited import/export.

Colombia

The Colombian legal regime on intellectual property does not have a specific law that regulates intellectual property in commercial contracts. However, there are specific laws that may be relevant when negotiating and executing commercial agreements (eg, antitrust laws) and there are some regulations that may apply to specific industries, which in some cases, varies the relevant authority (eg, agricultural patents).

The Commercial Code has dictated the principal provisions applicable to commercial agreements. Nonetheless, intellectual property continues to be governed by Decision 486 and Decision 351 issued by CAN, which set forth the rights and obligations derived from any invention, work or creation.

The interpretation and enforceability of commercial contracts are generally state law matters, but the Andean Court interpretation prevails in intellectual property matters. For this reason, to decide on the interpretation of clauses or provisions that involve intellectual property matters, the national judges request the Andean Court interpretation. If this procedure is not carried out, the decision of the national judge is not enforceable.

Czech Republic

Commercial contracts are governed by the Civil Code.

Other pieces of legislation may be relevant to certain commercial arrangements (eg, antitrust laws, Act No. 143/2001, as amended, on Protection of Economic Competition) and there may be industry-specific regulations that may be applicable to contracts in particular industries.

Denmark

The interpretation and enforceability of commercial contracts are widely governed by principles and practice. The content of the agreement is primarily determined by what has been agreed between the parties. However, there are several acts, including the Contracts Act, the Sale of Goods Act and the Credit Agreement Act, that govern transactions in goods (eg, buying and selling), security interests, letters of credit and other commercial transactions.

Furthermore, there may be other acts that are relevant to certain commercial arrangements (eg, antitrust laws) and there may be industry specific regulations applicable to contracts in particular industries.

Mandatory provisions apply in business-to-consumer transactions.

Finland

Finnish contract law is based on the principles of freedom of contract and the legal validity of contracts (pacta sunt servanda).

Some of the general principles of Finnish contract law are codified in the Contracts Act, but many of the general principles are not codified. The Contracts Act contains general principles on contracting, validity of contracts and contracting via a representative. Highly biased and unconscionable contracts can be either amended into a more reasonable form or nullified under Section 36 of the Contracts Act. This section is, however, very rarely applied to business entities.

Consumer legislation sets certain mandatory limitations to contracting in B2C environment. The parties cannot agree otherwise in a contract with consumers.

The contracts by entities in dominant position may also be subject to EU competition law scrutiny.

France

French law does not provide a unitary set of rules only applicable to commercial contracts. The following legal provisions may be applicable to commercial contracts:

  • The French Civil Code, which contains (i) most provisions on contract law, including rules regarding contracts in general (contract formation, validity, term, performance, enforceability, assignment, termination, liability and remedies) and rules regarding specific contracts, eg, sales, statutory warranties, agency, lease, loan, escrow, guarantees; and (ii) provisions on tort liability
  • The French Commercial Code, which contains some specific rules applicable in business to business agreements (eg, payment terms, interest for late payment, general terms and conditions, distribution, commercial agency, commissionaire, commercial leases agreements)
  • The French Intellectual Property Code, for contract terms relating to intellectual property rights
  • The French Consumer Code, which contains important rules that professionals must comply with when dealing with consumers, but which may also have to be taken into account when contracting with another business when the end-user is a consumer or in all cases when contracting with another business (eg, the prohibition of misleading commercial practices is also applicable to business transactions)
  • The Judicial Organization Code, which contains rules on the jurisdiction of intellectual property proceedings. 

This list is not exhaustive, and specific provisions may be implicated by certain types of commercial contracts (eg, Transport Code; Law on Subcontracting; Data Protection Law; Law on Confidence in the Digital Economy).

Germany

The German Civil Code (Bürgerliches Gesetzbuch) and Commercial Code (Handelsgesetzbuch) contain the general provisions relating to contracts.

The specific laws relating to certain intellectual property rights (eg, Copyright Act, Patent Act, Utility Model Act) contain further provisions on licensing agreements.

Hong Kong

Contract law in Hong Kong is largely based on the English common law model. There are no ordinances that govern commercial contracts generally, though, there may be ordinances that are relevant to certain commercial arrangements (such as the sale of goods) and contracts in particular industries.

Hungary

General contract law and the rules governing specific commercial contracts are set forth in the Hungarian Civil Code.

In general, the parties may freely agree on the contract terms and they are free to define the content of a contract.

The Civil Code sets out general rules (eg, for termination of a contract and rules for the event of breach of a contract) that are applicable for a contract if the parties do not agree otherwise.

Among the provisions on special contracts, the Civil Code regulates the following main commercial contract types: transfer of property (eg, buying and selling), contracts for professional services (including research contracts), commission contracts, lease agreements, deposit contracts, distribution and franchise agreements, credit and account agreements, security (guarantee) agreements, insurance agreements.

The acts on intellectual property rights lay down particular provisions on license agreements concerning artworks, trademarks, patents and designs.

There are special provisions with respect to contracts concluded by electronic means in Act 108 of 2001 on Electronic Commerce and on Information Society Services. For instance, the party using general terms and conditions and providing for an electronic way for concluding the contracts must make its general terms and conditions available in a way that the other party will be able to store and open them anytime.

The Government Regulation No. 45/2014 (II. 26.) contains provisions on the particular rules of contracts with consumers. This regulation also sets forth the rules on contracts between distant parties.

India

The Contract Act governs formation, implementation and enforcement of commercial contracts. It also lists contracts that may be void, voidable or unlawful. Apart from the general obligations under the Contract Act, there may be industry specific legislations at the federal and state levels that may be applicable to contracts in particular industries, or particular types of contracts.

The Specific Relief Act 1963 (SRA) grants specific relief in cases relating to enforcement of individual civil rights. Some of the relief that courts may grant under the SRA include specific performance of a contract, and permanent injunctions.

Apart from the Contract Act, transactions in goods are governed by the Sale of Goods Act 1930 (SOGA), and transactions in immovable property are governed by the Transfer of Property Act 1872.

Electronic contracts are recognized under the Information Technology Act 2000 (IT Act).

Indonesia

Most of the provisions regarding law on contracts are contained in Book III of the Indonesian Civil Code.

Ireland

For the most part, commercial contracts are governed by common law in Ireland. There are some industry specific and other legislation and regulation that apply to business-to-business  commercial contracts. There is also a wide variety of primary and secondary legislative provisions that apply to business-to-consumer contracts.

Israel

In general, contractual engagements are regulated under the Contracts Law (General Part), 5733-1973. The Contracts Law regulates, among other matters, the creation of a contract, the form and substance of the contract, the fulfillment of the contract and the rescission of the contract as a result of a fault arising from its creation.

Alongside the contract laws, there are several statutes that regulate specific contracts such as, those with respect to sale (including international sale of goods), agency (including with respect to a commercial agent), insurance, guarantees, assignment of rights and obligations and standard contracts.

Italy

There are a number of laws that may apply to commercial contracts, depending on the type of contract and the industry involved. However, general contract laws are contained in the Italian Civil Code.

With regard to agreements between businesses and consumers, the Legislative Decree No. 206/2005 (the "Consumer Code") is also applicable.

The Consumer Code provides for detailed provisions on E-Commerce, which were recently amended by the Legislative Decree No. 21/2014 (implementing the EU Directive 2011/83/EU). With specific regard to E-Commerce, Legislative Decree No. 70/2003 (implementing the EU Directive 2000/31/EU) should also be taken into account.

Japan

Contracts including commercial contracts are interpreted and enforced in accordance with the Civil Code (Act No. 89 of 1986), any other related laws, specified rules and regulations such as the Commercial Code (Act No. 48 of 1899) and court precedents.

Luxembourg

A number of laws may apply to commercial contracts, depending on the type of contract and the industry involved. However, generally commercial contracts are governed by provisions contained in the Luxembourg Civil Code.

The Law of April 8, 2011 introducing a Consumer Code in Luxembourg, as amended, applies to business-to-consumer agreements, and the E-Commerce Law of August 18, 2000, as amended, applies to e-commerce transactions.

Mexico

Commercial matter provisions are governed by Federal laws. In general, commercial agreements are governed by the Commercial Code; thus certain agreements are governed by specific Federal laws (ie, bank credit agreements, insurance, pledge, trusts, among others).

Additional commercial contract provisions may be found in other Federal laws (ie, antitrust, consumers' protection), regulations and official standards.

Venue for resolution of disputes specified in a commercial contract corresponds to Federal Courts although state courts may accept venue.

Commercial contracts with Federal and state government agencies are subject to separate governmental regulations, which can include among other matters, specific auditing and recordkeeping requirements.

Netherlands

Depending on the circumstances, such as the type of contract and sector, the Dutch Civil Code and other Dutch laws apply to commercial contracts.

New Zealand

The commercial contract framework in New Zealand is composed of an amalgamation of statutes, the common law, equitable doctrines and, to some extent, international law instruments. The most recent addition is the Contract and Commercial Law Act 2017, which has combined a number of statutes and covers matters such as contractual privity, contractual remedies, sale of goods and electronic transactions, among other things. The interpretation and enforceability of commercial contracts is generally a matter of common law.

There are statutes that may be relevant to certain commercial arrangements. For example, there are specific statutes relating to consumer contracts, consumer credit contracts and construction contracts, as well as statues governing competition and fair trading in the marketplace. There are also industry-specific regulations that may be applicable to contracts in particular industries.

Commercial contracts with the state and government agencies may be subject to additional regulations.

Norway

Norwegian contract regulations are governed by statute, non-statutory law and practice. The principles of pacta sunt servanda and freedom of contract are fundamental to the Norwegian contract law.

The Norwegian Contracts Act (No: avtaleloven) regulates and codifies certain law in relation to contracts. However, due to the development of non-statutory rules, the Contracts Act is mainly used for rules of authorization of contracts and invalid agreements.

The content of an agreement is primarily determined by what has been agreed between the parties, their justified expectations and subjective understanding of the agreement.

Certain mandatory provisions may apply in business-to-consumer contracts.

Poland

Legal provisions relating to contracts in general can be found in the Civil Code and the Code of Commercial Companies.

However, there are specific laws related to contracts concerning particular intellectual property rights, as indicated above.

Portugal

Portuguese law lays down a general principle of contractual freedom, which means that parties are mostly free to establish the terms and conditions to be observed by the contracts they enter into (exceptions are made to mandatory rules legally imposed which will depend on the specific contractual relationship) and are entitled to enter into contracts provided for in the law but also into contracts that are not provided for in the law.

Portuguese law does not establish a unitary act or set of rules applicable to all commercial contracts. Depending on the specific contractual relationship, commercial contracts may be subject to the provisions of the Civil Code, Commercial Code, Code of Copyright and Related Rights, and the Industrial Property Code as well as other specific legislation.

The aforementioned set of rules changes according to the specific contract in question.

Romania

Romania is a civil law jurisdiction. Under the new legal regime implemented by the New Civil Code (NCC), which entered into force in Romania as of October 1, 2011, commercial contracts are now referred to as contracts concluded between professionals. There are no general statutory provisions that govern contracts between professionals.

There are however statutory provisions that may be relevant to certain contracts concluded between professionals, eg, provisions regarding the price determination, and industry-specific provisions that may be applicable to contracts in particular industries.

Mandatory provisions on licensing and/or assignment of intellectual property rights may be found in various laws regulating the legal regime of such intellectual property rights.

The interpretation and enforceability of contracts concluded between professionals is generally a matter governed by the laws of the state specified in the contract. However, certain rights that are recognized by the Romanian copyright law, eg, moral rights, when the work has been published in Romania, may not be waived irrespective of the laws governing the merits of the contract. Case law is not a source of law.

Contracts with state government agencies are subject to separate public procurement laws, which can include, among other matters, the allocation of intellectual property rights that can be unilaterally decided by the contracting authority.

Russia

There are a number of laws that may apply to commercial contracts, depending on the type of contract and on the industry involved. However, the general provisions are contained in the Russian Civil Code (Parts I and II).

Saudi Arabia

The KSA does not have a formal dedicated code or legislation as such setting out the principles of contract law. The key principles of contract law derive from Shari'a (or Islamic) principles, the primary source of law in the KSA, but which are not codified.

In addition, the law in the KSA consists of legislation passed by government (which is secondary if it conflicts with Shari'a principles), which also govern commercial activities in the KSA. For example, additional requirements apply to procurement and contracting with government entities under the Government Tenders and Procurement Law (enacted by Royal Decree No. M/58, dated 4 Ramadan 1427H (corresponding to 27 September 2006)), and its Implementing Regulations. The Saudi Arabian Monetary Authority (SAMA) oversees, amongst other things, banking activities in the KSA.

There is no concept of judicial precedent in the KSA, which means that the decisions of the courts and other judicial authorities do not have binding authority in respect of another case. In addition, court cases are not generally published as a matter of course. This means that it is not always possible to reach a conclusive interpretation of laws and regulations or to understand how the courts/authorities in the KSA would view a particular matter.

Singapore

Singapore contract law is largely based on English common law, though, in some cases, the precedent set by common law has been modified by statute. While there is no Contracts Act, the law has been codified in areas such as rights of third parties under contracts (Contracts (Rights of Third Parties) Act (Cap. 53B)), unfair contract terms (Unfair Contract Terms Act (Cap. 396)) and restitution in frustrated contracts (Frustrated Contracts Act (Cap. 115)).

The Electronic Transactions Act (Cap. 88) applies to contracts concluded online and is the primary legislation governing e-commerce in Singapore. 

Slovak Republic

Not applicable for this jurisdiction.

South Korea

The Civil Code, the Commercial Code (KCC) and the Standard Terms Control Act (STCA) are the primary statutes that govern private and commercial contracts. The Monopoly Regulation and Fair

Trade Act (FTA) is relevant to antitrust laws, and there are industry-specific regulations that may be applicable to contracts in particular industries.

Commercial contracts with national and local government agencies are subject to additional laws and governmental regulations, which can include, among other matters, specific bidding requirements as well as a grant of intellectual property rights to the government by default.

Spain

Although the Spanish Constitution establishes at Article 149.1.6 that commercial legislation is reserved to Spanish National Statutes, the powers of the Self-Governing Regions in the field of "trade" and "consumer protection" and the existence of regional limited Civil Codes cause interferences between different sources of legislation. In addition, Spanish National legislators have preferred over the last five decades to draft separate laws for each commercial contract/ commercial law issue, instead of merging them into the pre-existing Code of Commerce. As a result, commercial issues are considered under the light of the two old Codes but also of the new National laws (Agency Act, Unfair Competition Act, Franchising Royal Decree, Retail Trade Act, Consumer Protection Act, Mobile Property Pledge Act) and of the regional laws and regulations.

Sweden

Swedish contract law is based on the main principles of Roman law (pacta sunt servanda) and the freedom of contract. The content of the agreement is determined primarily by what has been agreed between the parties, but may be supplemented by rules and case law, trade practice or custom.

The main source of Swedish contract law is the Contracts Act (1915:218) (Avtalslagen). The Contracts Act does not cover every aspect of contract law, but it sets forth the fundamental rules for Swedish contracts. Highly biased and unfair contractual provisions may be amended or declared null and void by a Swedish Court of law under the Contracts Act Section 36. For this to happen, the contract has to be highly unfair and detrimental to one party (one-sided).

Mandatory provisions apply in a business-to-consumer situation.

Switzerland

Commercial contracts are governed by the Swiss Civil Code and the Swiss Code of Obligations, which contain the general rules about the formation, enforceability and interpretation of contracts, as well as specific provisions on specific types of contracts.

Taiwan

Commercial contracts in Taiwan are basically governed by the Civil Code. Certain contracts with a special nature (such as agreements in relation to copyrights or patent) are governed by various special laws or regulations, such as the Copyright Act and Patent Act, among others.

Ukraine

Commercial contracts in Ukraine are governed by the Civil Code of Ukraine dated January 16, 2003 as well as Commercial Code of Ukraine dated January 16, 2003, which contain general rules about contract formation, enforceability and termination, as well as specific provisions applicable to certain types of contracts. Certain provisions pertaining to contracts can also be found in other laws regulating particular spheres such as e-commerce, technology transfer and others.

United Arab Emirates

Commercial contracts are generally governed by:

  • Federal Law No. 2 of 2015 (Commercial Companies Law)
  • Federal Law No. 18 of 1993 (Commercial Transactions Law)
  • Federal Law No. 5 of 1985 as amended (Civil Code)

Commercial contracts which are concluded electronically will be subject to additional requirements under Federal Law No. 5 of 2012 (Cyber Crime Law) and Federal Law No. 1 of 2006 (Electronic Transactions Law).

Commercial contracts with government entities are subject to additional requirements under Federal procurement regulations including Ministerial Decision (20) of 2000 on Departmental Contracts Regulation.

Some commercial contracts will also be subject to additional requirements in Federal Law No. 24 of 2006 (Consumer Protection Law).

Exclusive distribution agreements and agency agreements (including franchise agreements) that have been registered with the Ministry of Economy as a commercial agency will be exclusively governed by Federal Law No. 18 of 1981 (as amended) (Agency Law).

United Kingdom

The UK has three distinct legal systems:

  • English law applicable in England and Wales
  • Northern Irish law applicable in Northern Ireland
  • Scots law applicable in Scotland

Commercial contracts are governed by domestic legislation, case law, the operation of EU law and international treaties in certain circumstances. There are specific rules that may apply to certain types of commercial contracts. There are often more stringent rules for consumer contracts, ie, made between a business and a consumer to address the often unequal balance between the parties.

The interpretation and enforceability of commercial contracts is generally a matter for the courts and a number of common law principles have evolved through case law. Each contract and clause will, however, be determined on an individual basis depending upon the facts of the case in question and some well-established interpretive rules.

In addition, there are a number of statutes which are likely to require contractual protections drafted into the majority of contracts. For example, the Bribery Act 2010, which has extra-territorial effect and potential criminal sanctions for non-compliance; the Transfer of Undertakings (Protection of Employment) Regulations 2006, which provide that in certain circumstances employees of one contracting party may transfer to the other contracting party; and contracts with public sector authorities are generally subject to a more rigorous statutory framework.

United States

There are no Federal statutes that govern commercial contracts generally. There are Federal statutes that may be relevant to certain commercial arrangements, eg, antitrust laws, and there are industry-specific regulations at the Federal level that may be applicable to contracts in particular industries. There are also state regulations applicable to specific industries that may be relevant to commercial contracts.

With respect to commercial contracts, a version of the Uniform Commercial Code (UCC) has been adopted by each of the 50 states in the United States. The UCC is a uniform act that was drafted by private organizations as a recommendation on harmonizing the laws applicable to commercial transactions. The UCC governs transactions in goods, eg, buying and selling, security interests, letters of credit and other commercial transactions. Because each state has adopted its own version of the UCC, laws may differ slightly from state to state.

The Uniform Computer Information Transactions Act (UCITA) was an attempt to provide guidelines on licensing of intellectual property and software, which Article 2 of the UCC (the Article dealing with "goods," which has been interpreted to include software) did not expressly address. UCITA was controversial because of the potential liability it imposed on software vendors and therefore was not adopted by more than just a few states (Virginia and Maryland).

The interpretation and enforceability of commercial contracts is generally a state law matter, governed by the laws of the state specified in the contract. Case law precedent interpreting and enforcing UCC provisions can differ from state to state.

Commercial contracts with Federal and state government agencies are subject to separate governmental regulations, which can include, among other matters, specific auditing and recordkeeping requirements, as well as intellectual property rights that can be granted to the government by default.