Hamburger
  • Intellectual property framework

    Overview

    Intellectual property is a right protected by the Constitution of the Republic of Angola. The fundamental intellectual property framework in Angola is provided in 2 main acts: the Legal Regime for the Protection of Copyright and Related Rights and the Industrial Property Law.

  • Commercial contract framework

    Overview

    Angolan 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.

    Angolan 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, Copyright and Related Rights Law, and the Industrial Property Law as well as other specific legislation.

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

  • Copyrights

    Nature of right

    Copyright covers original literary, scientific and artistic intellectual creations, or works. Registration is not required for the acquisition or maintenance of copyright rights; however, there are certain specific copyright-related acts subject to registration in order to be valid.

    In Angola, copyright comprises economic and moral rights.

    In the scope of economic rights, copyright owners have the exclusive right to use, enjoy and dispose of their work, or to authorize the use of the work, wholly or in part, by third parties.

    Moral rights consist in the right to claim authorship of the work, as well as the right to ensure its genuineness and integrity.

    Legal framework

    Copyrights are governed by Law No. 15/14 of July 31, which introduced the Legal Regime for the Protection of Copyright and Related Rights.

    Duration of right

    As general rule, moral copyrights are unlimited in time and, therefore, are inalienable and imprescriptible. With respect to economic copyrights, copyright protection lasts for a term of 70 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 works in collaboration, copyright expires 70 years after the death of the last surviving author. As per collective works or works originally assigned to a corporate person, copyright expires 70 years from the date of the first licit publication or disclosure, except if the individuals who create it were identified in the version of the work available to the public.

    For an anonymous work, or work that was legally published or disclosed without identifying the respective author, protection is for 70 years after publication or disclosure.

    Please note that, with respect to applied arts and photographic works, economic copyrights protection lasts for a term of 45 years, counted as of January 1 of the first year after the death of the author.

    Economic copyrights related to a broadcaster last up to 35th calendar year after the broadcast.

    Ownership / licenses

    Moral rights are inalienable.

    The copyright owner, as well as their successors or assignees, may authorize the use of the work by third parties or assign economic rights, wholly or partially.

    Granting an authorization to third parties in order for them to divulge, publish, use or explore the work does not imply the transfer of copyright rights.

    Authorization shall only be granted in writing, mandatorily including the parties involved, the title and type of the work, the rights concerned, the duration, place and price conditions.

    Please note that the assigns are only effective against third parties when registered.

    Remedies for infringement

    The copyright owner may request payment of compensation by the agent for damages and losses to repair the damage suffered as a result the infringement, as well as payment of expenses caused by that infringement, which may include legal expenses.

    The amount of the compensation is determined in accordance with the civil liability regime provided for by the Angolan Civil Code, taking into account the amount of material and moral damage suffered by the copyright owner, as well as the profit obtained by the offender.

    When it is proven that the infringing copies affect a right, the Court may order, ensuring that the penalty is proportionate to the seriousness of the offense and taking into account the legitimate interests of third parties, the destruction of those copies and their packaging or their elimination of trade channels by any other reasonable means, without compensation of any kind, in order to avoid any damage to the copyright owner.

  • Mask works / topographies

    Nature of right

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

    Legal framework

    Angolan has enacted no specific rules on protection of mask works or topographies. Although Angola is part of the WTO and has approved the TRIPS Agreement, it has not yet implemented any rules on mask works or topographies protection.

    Semiconductor technology, generally, and topographies, in particular, may be protected under the traditional intellectual property rules applicable to all types of technology, particularly 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

    Patent rights cover new inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

    An invention shall be considered new if it does not form part of the state of the art, which comprises everything, inside or outside the country, made available to the public by means of a written or oral description, by use, or in any other way, before the date of filling of the patent application.

    An invention shall be considered involving an inventive step if it is not obvious to a person skilled in the art.

    An invention shall be considered susceptible of industrial application if it can be made or used in any kind of industry, including agriculture, fishing and handicraft.

    A national patent confers on its owner the exclusive right to exploit the patented invention in Angolan territory.

    Legal framework

    Patents are governed by the following:

    • Chapter II, the Industrial Property Law (Articles 2 to 14)
    • Membership of the World Intellectual Property Organization (WIPO), approved by Resolution No. 9/84 of July 20
    • Paris Convention for the Protection of Industrial Property – approved by Resolution No. 22/05 of August 19
    • Cooperation Treaty patent (PCT) approved by Resolution No. 22/05 of August 19 and
    • Membership of the World Trade Organization (WTO), hence the TRIPS Agreement (Accession November 23, 1996).

    Duration of right

    Patent protection is granted up to a maximum period of 15 years from the date of filling of the patent application.

    Ownership / licenses

    Patents can be transferred in writing, by means of public deed, whether or not for financial reward.

    Patents may also be licensed in writing, wholly or partially, whether or not for financial reward, on an exclusive or non-exclusive basis.

    Transfer of ownership and licenses shall be recorded in the Angolan Institute of Industrial Property to be effective against third parties.

    Remedies for infringement

    Whenever there is violation of or justified fear that another party may cause serious and difficult-to-repair harm to an industrial property right, including patent rights, the court may, at request of the interested party, order the appropriate measures to prevent any imminent violation or to prohibit continuation of the violation.

    Whoever illegally violates the industrial property rights of another person with intent or by negligence shall be obliged to pay a compensation to the injured party for damages resulting from the violation.

    In determining the amount of compensation for losses and damages, the court shall take into account the profit obtained by the infringer and the resulting damages and lost profits suffered by the injured party. The costs borne out of protection of the right in question and the investigation and termination of the harmful conduct shall also be taken in consideration, as well as personal injury.

    Infringement of the exclusive right granted by a patent may be also punishable as crime with imprisonment up to 6 months or a fine.

  • Trademarks

    Nature of right

    A trademark is a sign that distinguishes a company's goods or services, from the goods and services provided by other companies. There are 3 types of trademarks, namely:

    • Nominative: when constituted by letter(s) or word(s)
    • Figurative: consisting of figures or images and
    • Mixed: when it includes a combination of figures and words or letters in its constitution.

    The registered trademark confers to the owner, the right to prevent third parties that do not have their consent from using in the course of trade any sign which is identical or similar to the trademark in relation to goods and/or services which are identical or similar to those for which the trademark is registered.

    Legal framework

    Trademarks are governed by the following:

    • Chapter II, the Industrial Property Law (Articles 29 to 40)
    • Membership of the World Intellectual Property Organization (WIPO), approved by Resolution No. 9/84 of July 20
    • Paris Convention for the Protection of Industrial Property – approved by Resolution No. 22/05 of August 19 and
    • Membership of the World Trade Organization (WTO), hence the TRIPS Agreement (Accession November 23, 1996).

    Angola is not a party to either the Madrid Agreement or the Madrid Protocol. As such, International Registrations (IRs) cannot be extended to Angola. Angola's accession to the Madrid Agreement and/or the Madrid Protocol is currently the subject of consultation, but the position is unlikely to change for a number of years to come.

    Duration of right

    National trademark registrations remain valid for 10 years starting from the date of filing of the application and may be indefinitely renewed for equal periods.

    Ownership / licenses

    Trademarks can be transferred in writing, wholly or partially, whether or not for financial reward. A transfer of the whole of the undertaking shall include the transfer of the trademark except where there is agreement to the contrary or circumstances clearly dictate otherwise.

    Trademarks may also be licensed in writing, wholly or partially, whether or not for financial reward, on an exclusive or non-exclusive basis.

    Transfer of ownership and licenses must be recorded in the Angolan Institute of Industrial Property to be effective against third parties.

    Remedies for infringement

    Whenever there is violation of or justified fear that another party may cause serious and difficult-to-repair harm to an industrial property right, including trademarks, the court may, at request of the interested party, order appropriate measures to prevent any imminent violation or to prohibit continuation of the violation.

    Whoever illegally violates the industrial property rights of another person with intent or by negligence shall be obliged to pay a compensation to the injured party for the damages resulting from the violation.

    In determining the amount of compensation for losses and damages, the court shall take into account the profit obtained by the infringer and the resulting damages and lost profits suffered by the injured party. The costs borne out of protection of the right in question and the investigation and termination of the harmful conduct shall also be taken in consideration, as well as personal injury.

    Trademark infringement is punishable as crime with imprisonment up to 3 months or a fine.

  • Trade secrets

    Nature of right

    Trade secrets are not protected as property in Angola. However, the Angolan Industrial Property Law, in the chapter related to Crimes of Unfair Competition, characterizes as crimes certain conducts involving the unauthorized use of trade secrets. As a result, there is legal protection against the violation of trade secrets.

    Legal framework

    Trade secrets are addressed in article 73 of the Angolan Industrial Property Law.

    Duration of right

    Not applicable for this jurisdiction.

    Ownership / licenses

    Not applicable for this jurisdiction.

    Remedies for infringement

    Remedies available for infringement of trade secrets can include criminal remedies (imprisonment and monetary fine) and civil remedies (injunction to prevent the continuation of infringements and damages).

    Trade secret violation is punishable with a fine, if a more serious sanction does not apply by applying the provisions of the penal code and Law No. 9/89 (Law on Crimes Against the Economy).

  • Other key IP rights

    Nature of right

    Design

    Industrial design means any new arrangement or set of lines or colors that, for industrial or commercial purposes, can be applied to the ornamentation of a product by any manual, mechanical, chemical, simple or combined process.

    The registered design confers to the owner the right to prevent third parties that do not have their consent from using it. The aforementioned use shall cover, in particular, the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes.

    Industrial designs

    Industrial designs

    Legal framework

    Design

    Designs are governed by Chapter III of the Industrial Property Law (Articles 15 to 28).

    Duration of right

    Design

    Designs registrations remain valid for 5 years starting from the date of filing of the application and may be renewed for 2 consecutive times of 5 years each.

    Ownership / licenses

    Design

    Designs may be licensed in writing, wholly or partially, whether or not for financial reward, on an exclusive or non-exclusive basis.

    Transfer of ownership and licenses must be recorded in the Angolan Institute of Industrial Property to be effective against third parties.

    Remedies for infringement

    Design

    Whenever there is violation of or justified fear that another party may cause serious and difficult-to-repair harm to an industrial property right, including designs, the court may, at request of the interested party, order appropriate measures to prevent any imminent violation or to prohibit continuation of the violation.

    Whoever illegally violates the industrial property rights of another person with intent or by negligence shall be obliged to pay a compensation to the injured party for the damages resulting from the violation.

    In determining the amount of compensation for losses and damages, the court shall take into account the profit obtained by the infringer and the resulting damages and lost profits suffered by the injured party. The costs borne out of protection of the right in question and the investigation and termination of the harmful conduct shall also be taken in consideration, as well as personal injury.

    Infringement of the exclusive right granted by a registered design may be punishable with a fine.

  • Intellectual property in employment context

    Employees

    As a general rule, the copyright over a work made under a labor agreement or in compliance with functional obligations is determined by agreement between the parties. In case no agreement exists, it is presumed that the ownership over the work belongs to the respective intellectual creator. In cases where there is a service provision contract, the property rights over the work are transferred to the contractor or entity represented by it.

    The right to patent shall belong to the inventor or their successors in title. Notwithstanding, if an invention was made during the performance of an employment contract in which inventive activity is provided for, the right to the patent belongs to the employer.

    Consultants / contractors

    In principle, consultants and contractors will retain ownership of the intellectual property developed by them, unless otherwise agreed by the parties or provided for in the law.

  • Key commercial contract considerations

    Registration of commercial agreements

    There are no general registration requirements for commercial contracts under Angolan law; however, certain exceptions may arise. Furthermore, Industrial Property Rights licenses are subject to registration within the Angolan Industrial Property Institute (IAPI) in order to be enforceable against third parties.

    Recognized language of commercial agreements

    There are no general requirements under Angolan law that provide that contracts must be written in Portuguese. However, in certain cases – for instance, contracts with consumers – the Portuguese language is mandatory, and, if the contract is to be used in specific situations – for example, for purposes of evidence in court or used with public authorities – translation to Portuguese is required.

    Country-specific issues for online content

    Electronic contracts are regulated under Presidential Decree No. 202/11 of July 22.

    Enforceability of online/clickwrap/shrinkwrap terms

    Contracts may be concluded electronically, provided that it does not affect its validity or effectiveness due to the use of this medium. Please note that general contractual clauses requiring electronic conclusion of consumer contracts are prohibited.

    The provider shall make available to the recipients, before the conclusion, unambiguous minimum information including (i) the contract conclusion process, (ii) whether or not the contract is stored by the service provider and accessibility by the recipient, (iii) the language or languages in which the contract may be concluded, (iv) the technical means which the provider makes available so that errors of introduction which may be contained in the order form may be identified and corrected, (v) the contractual terms and general clauses of the contract to be concluded, (vi) the codes of conduct subscribed and information on how to consult them electronically  and (vii) the effective technical means which allows the recipient to identify and correct inserted errors.

    Governing law

    The interpretation and enforceability of contracts is a matter of governing law. The choice of law by the parties is accepted as a general principle, except when otherwise provided for by law; please, however, note that, in certain cases, there are rules of mandatory application – for instance, in the scope of contracts concluded with consumers.

  • Key commercial contract terms

    Enforceability of warranty disclaimers

    This will depend on the specific warranty. Notwithstanding, the law may provide some restrictions on the enforceability of warranty disclaimers (eg, for reasons of consumer protection).

    Enforceability of exclusions/limitations of liability indemnification

    As general rule, the enforceability of exclusions or limitation of liability is limited under Angolan law. According to civil law, limitation of liability or exclusion of liability concerns the grounds of liability itself and the damages and losses. The law is not absolutely clear when dealing with the matter; therefore, some hold the opinion that the law does not prevent clauses limiting or excluding liability for acts of mere negligence, while others suggest that all clauses of exclusion or limitation are completely null and void.

    Indemnification

    Indemnification clauses in contracts are, in principle, enforceable, but may be subject to restrictions provided for in the law. It is relatively common to stipulate in commercial agreements that the indemnifying party will indemnify and hold harmless the other party against claims of third parties related to the subject matter of the agreement.

    Electronic signatures

    According to Angolan law, a qualified electronic signature is equivalent to an autographic signature in paper documents. An electronic document shall only be deemed to be signed for purposes of evidence where it meets the requirements set by the law on electronic signature and certification.

  • Key contacts
    Murillo Costa Sanches
    Murillo Costa Sanches
    Of Counsel DLA Piper [email protected] T +351 213 583 659 View bio
    Joni Garcia
    Joni Garcia
    Associate DLA Piper ADCA Angola [email protected] T +244 926 612 525

Commercial contract framework

Overview

Angola

Angolan 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.

Angolan 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, Copyright and Related Rights Law, and the Industrial Property Law as well as other specific legislation.

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

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 and 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; and
  • 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 certain 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.

In addition, in respect of business-to-business agreements, a new act of April 4, 2019 amending the Code of Economic law established three new sets of rules has been in respect of:

  1. the prohibition of abuse of economic dependence;
  2. unfair terms; and
  3. misleading and aggressive market practices in business-to-business relations.

The first set of rules is included in Book IV “Protection of competition” and has already entered into force on September 1, 2019; the second and third sets are included in Book VI “Market Practices and Consumer Protection” of the Code of Economic Law and will enter into force on June 1, 2020 and December 1, 2020, respectively.

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. The province of Québec has a civil law system, while the balance of the Canadian provinces have a common law system.

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.

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 for contracts and special requirements depending on the type of contract. Moreover, it is applied in addition to any specific law, including the Commercial Code and Corporation Law.

In principle, the mutual agreement of the parties to a contract with the essential elements of the contract must be declared expressly, seriously and freely. The contract must 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 performed. Finally, the cause of the contract, meaning the motivation of the act, needs to be real and lawful (however, please note that the mere beneficence is sufficient cause).

Lastly, certain contracts are required to be executed in written form or other additional formalities due to their significance. However, and notwithstanding there is no general requirement to do so, most contracts are executedin writing for reasons of proof.

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 varies the relevant authority in some cases (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, national judges request the Andean Court’s 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, Consumer Contracts 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) and
  • 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, BGB) and Commercial Code (Handelsgesetzbuch, HGB) 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, SAR

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 reliefs that courts may grant under the SRA include specific performance of a contract, and permanent injunctions. An amendment to the SRA has now introduced more certainty to specific performance of contracts through courts by doing away with the wide discretion that was vested in the courts earlier. The amendment now requires the courts to mandatorily enforce specific performance of a contract, except in certain prescribed instances under statute.

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 Consumer Code in Luxembourg applies to business-to-consumer agreements, and the E-Commerce Law of 14 August 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 and trusts, among others).

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

The 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. Furthermore, the specific laws relating to certain intellectual property rights contain further provisions on licensing agreements.

Philippines

Commercial transactions are governed by various Philippine laws, such as Republic Act No. 386, or the Civil Code, and Republic Act No. 11232, or the Revised Corporation Code. There are industry-specific laws, such as Republic Act No. 8762, or the Retail Trade Liberalization Act, Republic Act No. 9136, or the Electric Power Industry Reform Act, and, more recently, the country’s comprehensive competition legislation was passed as Republic Act No. 10667, or the Philippine Competition Act.

Intellectual property rights are protected principally under the Intellectual Property Code of the Philippines.

Under Philippine law, intellectual property rights consist of:

  • Copyright and related rights
  • Trademarks and service marks
  • Geographic indications
  • Industrial designs
  • Patents
  • Layout-designs and
  • Protection of undisclosed information.

However, note that, in addition to the above enumeration, Philippine jurisdiction recognizes protection for utility models and new plant varieties.

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 (Council of Ministers Resolution No. 649/1440 and published in the Umm Al-Qura Official Gazette, Issue No. 4790 on 2 August 2019), 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, China

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. In addition, certain provisions pertaining to contracts may be found in other laws regulating particular spheres such as e-commerce and technology transfer, among 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.