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  • 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

Key commercial contract terms

Indemnification

Angola

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.

Argentina

The basic rule under Argentine law is 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.

Australia

Express indemnities are recognized and are generally enforceable.

Caps on liability under indemnification clauses are generally enforceable but, in some circumstances, may be considered unfair, particularly where they are onerous on consumers, and therefore unenforceable.

Austria

In general, express indemnities stated in contracts are permissible. Note that there is no indemnification concept comparable to US law in Austria.

Belgium

The concept of indemnification will, in general, be interpreted in accordance with Belgian law principles (which do not define indemnification) to provide a similar effect, such as a guarantee provided to the indemnitee.

Brazil

Indemnification provisions are generally recognized and enforceable. Normally they include the obligation to defend, indemnify (ie, pay damages) and hold harmless. Indemnification is not limited to 3rd-party claims.

Even if the parties do not establish a contractual obligation to indemnify, there may be indemnification obligations provided by law.

As a general rule, indemnification is measured by the extent of the damage, which normally includes actual losses and lost profits.

Canada

Indemnity clauses, like other contractual clauses, will usually be enforced if negotiated between the parties. However, standard principles such as inequality of bargaining power (particularly in the case of consumer transactions), ambiguity or manifest unfairness of the clause may make such a clause unenforceable in a particular case.

Chile

Express indemnities agreed upon in contracts are recognized and generally respected. There are some statutory limits on the amount and indemnification clause that may be set forth.

China

Express indemnities stated in contracts are recognized and generally respected. Courts will not usually imply an indemnity obligation in a contract.

Colombia

Express indemnities stated in agreements are recognized, respected, and generally have 3 obligations:

  • Defend
  • Indemnify (pay for the damages caused) and
  • Hold harmless (if the indemnifying party does not have of any other liability arising out of the claim).

The indemnification clauses may extend to third parties.

Czech Republic

Express indemnities stated in contracts are recognized and generally respected, though relevant case law is lacking.

The "promise of indemnity" set out as a contractual type in the Civil Code includes the element of indemnification (ie, payment of damages) only. In contracts, the other distinct obligations are often included – that is, defense and holding harmless (ie, indemnifying party responsible for any other liability arising out of the claim) – and this contractual arrangement should be considered valid and enforceable.

Caps on liability under indemnification provisions can be enforceable.

Denmark

Indemnification clauses of contracts are generally enforceable, unless they are unfair.

Finland

Indemnification clauses are usually enforceable and relatively common in B2B contracts.

France

Indemnification clauses are commonly used in French contracts, in particular where intellectual property rights are involved.

Generally, these clauses have 3 distinct obligations: defend, indemnify (ie, pay damages) and hold harmless (ie, indemnifying party responsible for any other liability arising out of the claim). Indemnification is not limited to 3rd-party claims.

Caps on liability under indemnification provisions may be enforceable, provided that the limitation liability clause does not empty the essential obligation from its substance. Indemnification clauses are generally unenforceable against consumers, provided that such clause is not considered as unfair pursuant to consumer law provisions and does not create significant imbalance between the rights and obligations of the parties for standard, non-negotiated contracts. 

Germany

While the obligation to indemnify is generally part of the damage claim (claims by third parties as damage), parties may agree on specific indemnification provisions (eg, for breach of IP rights). Restrictions apply in general terms and conditions – for example, an indemnification regardless of fault – will generally be invalid.

Hong Kong, SAR

Express indemnities stated in contracts are recognized and generally respected.

In addition, a principal (or an employer) is under a duty to indemnify an agent (or an employee) against all expenses and liabilities incurred in the performance of lawful acts within the scope of the agent’s (or employee’s) duties. Courts do not usually imply an indemnity obligation in a contract where there is an express indemnity.

An indemnification provision in a contract generally provides for indemnifying the other party and holding the other party harmless against losses, damages, expenses, costs, claims and other types of liability arising from breach of a (specified) provision in the underlying contract or from another specified claim (eg, a 3rd-party claim). Indemnification may cover claims between parties as well as 3rd-party claims.

Caps on liability under indemnification provisions are generally enforceable.

Hungary

Considering that no special indemnification rules regulate commercial contracts, the general contractual rules of the Civil Code shall apply to them.

Indemnities stated in contracts are recognized and enforceable.

Indemnification provisions generally have 3 distinct obligations: defense, indemnify (ie, pay damages) and hold harmless (ie, indemnifying party responsible for any other liability arising out of the claim).

Caps on liability under indemnification provisions can be enforceable.

India

The Contract Act recognizes indemnity as a contract by which 1 party promises to save the other from loss caused to them by the conduct of the promisor themselves, or by the conduct of any other person.

However, the Indian courts have held that an express indemnity clause may not be necessary in face of implied rights to indemnity already existing under Indian laws.

The promisee in a contract of indemnity, acting within the scope of their authority, is entitled to recover from the promisor:

  1. All damages which they may be compelled to pay in any suit in respect of any matter to which the promise to indemnify applies.
  2. All costs which they may be compelled to pay in any such suit if, in bringing or defending it, they did not contravene any orders of the promisor; and acted as would be prudent for them to act in the absence of a contract of indemnity; or if the promisor authorized them to bring or defend the suit.
  3. All sums which they may have paid under the terms of any compromise of any such suit, if the compromise was not contrary to the orders of the promisor, or was prudent to be made in the absence of a contract of indemnity or is authorized by the promisor.

Indonesia

Express indemnities stated in contracts are recognized and generally respected.

Ireland

Indemnity clauses in contracts typically fall into 2 categories

  • Clauses where one party agrees to indemnify the other against liability which that other may have toward him/her; and

  • Clauses in which one party to the contract agrees to indemnify the other party against liability that the other party may incur toward 3rd parties.

Indemnities are generally respected and recognized. Indemnification provisions are generally enforceable unless they involve indemnification of conduct that has been declared unenforceable by statutes or the courts (such as fraud, wilful injury to persons or property and any other future or past unlawful acts) or are contrary to public policy. 

It is not unusual to see limitations and exclusions of liability applying to indemnities. In general, these will be enforceable under Irish law.

Israel

Under Israeli law, parties are free to enter into an agreement where one party will indemnify the other party for any losses or damages suffered by the indemnitee arising out of or as a result of specified events. In practice, indemnity agreements usually include indemnity carve-outs and exclusions (such as limited duration and scope of liabilities triggering the obligation to indemnify or limitation in indemnity amount).

Indemnification for criminal fines are not enforceable in Israel as they are usually regarded as contravening public policy.

Italy

Under the general provisions of the Italian Civil Code, only the damages that are an immediate and direct result of the non-fulfillment or delay in the performance of the contractual obligation (Section 1223 of the Italian Civil Code) can be claimed by the parties.

Japan

The concept of indemnification does not exist under Japanese law. Instead, a contract party will be entitled to certain remedies upon breach of contract, such as damage claims and specific performance. Separately, damage claims are also available in tort cases.

Either in contract or in tort, if a party seeking compensation for monetary damages was also negligent, a Japanese Court may consider reducing damages under the concept of comparative negligence.

Luxembourg

Under the general provisions of the Luxembourg Civil Code, only the damages that are the immediate and direct result of the non-performance or delay in the performance of the contractual obligation (Article 1142 and following of the Luxembourg Civil Code) may be claimed by the parties.

Mexico

Federal and state civil laws set forth the provisions related to indemnification for damages and losses, which shall be, and are limited to, direct and immediate consequence of the act or omission that generated the indemnification.

Liquidated damages provisions may be used in agreements, provided that the amount of such liquidated damages may not be greater than the principal amount of the agreement.

Netherlands

The concept of indemnification will, in general, be interpreted in accordance with the Dutch law principles (meaning the principles of reasonableness and fairness) and is subject to freedom of contract.

New Zealand

Express indemnities are recognized and generally respected.

However, with respect to specific subject matter, for example pecuniary penalties in relation to entering into cartel provisions, an indemnity may be void. In addition, some statutes require additional formalities before an indemnity provision will be enforceable (such as pursuant to the Credit Contract and Consumer Finance Act 2003).

Nigeria

Indemnification under Nigerian law is generally enforceable.  It can either arise from contract, from an obligation resulting from the relation of the parties (express or implied) or by the statutes. The rule of indemnity is aimed at restoring the party who has suffered a loss within the contemplation of the parties to the financial position they occupied before the loss in relation to the subject matter. Indemnity principle introduces some amount of certainty to an agreement. Parties are able to measure their financial obligations to each other.

Norway

Indemnification clauses of contracts are generally enforceable unless they are unfair.

Peru

N/A

Philippines

Express indemnities stated in contracts are recognized and generally respected.

Implied indemnities are based on theories of comparative indemnity or partial indemnity or comparative equitable indemnity (ie, comparative fault of the parties). Courts may award indemnity obligations in the form of moral, exemplary or nominal damages, notwithstanding that an express indemnity is already stated in a contract.

Express indemnities based on comparative fault are enforceable.

Indemnification provisions are generally enforceable unless they require indemnification of behavior that statutes or courts have held to be unenforceable (such as fraud, willful injury to a person or property and other future unlawful acts); indemnification for past unlawful acts is enforceable.

Indemnification provisions generally have 3 distinct obligations: defend, indemnify (pay damages) and hold harmless (the indemnifying party is responsible for any other liability arising out of the claim). Indemnification is not limited to third-party claims.

Caps on liability under indemnification provisions can be enforceable.

Poland

It is permissible for 1 party to indemnify the other party against the claims of 3rd parties. Such clauses are commonly used in contracts concerning the transfer or licensing of intellectual property rights.

In transactions, indemnification clauses are usually used for defined and already existing risks, to ensure that the indemnifying party will hold the other party harmless in the event of any 3rd-party claims.

Portugal

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 3rd parties related to the subject matter of the agreement.

Romania

Express indemnities stated in contracts are recognized and generally respected. Such express indemnity may be censored by Romanian courts in very limited situations.

Implied indemnities are additionally possible and usually include the loss actually suffered by the aggrieved party and loss of profit. In determining the extent of the indemnity, account is also taken of the costs incurred by the aggrieved party, within a reasonable limit, to avoid or limit the damage.

Express indemnities based on comparative fault are enforceable. Caps on liability under indemnification provisions may be enforceable.

Russia

Indemnification is currently recognized as enforceable in Russia, but in limited scope. Additionally, this concept is still very new and untested.

Saudi Arabia

The enforceability of an indemnification obligation is ultimately subject to court evaluation and discretion. That said, a party is only likely to be held liable under an indemnity if found to be a direct cause of losses which have been actually incurred by the party benefiting from the indemnity. Indirect and consequential losses are unlikely to be recoverable.

Singapore

Express indemnity clauses in contracts are common and enforceable in Singapore. However, this is subject to the reasonableness test under section 4(1) of the Unfair Contract Terms Act 1977, which clarifies that a contract cannot require a consumer to indemnify another person (whether a party to the contract or not) for liability that may be incurred by the other party for negligence or breach of contract, unless the contract term satisfies the requirement of reasonableness.

Slovak Republic

Not applicable for this jurisdiction.

South Korea

As a general rule under Korean civil law, if a contract obligates a putative indemnitor to defend any 3rd-party claim raised against an indemnitee, the indemnitor will have a contractual duty to assume the defense.

Spain

Express indemnities stated in contracts are recognized and generally respected.

Indemnification provisions are generally enforceable unless they require indemnification of behavior that statutes or courts have held to be unenforceable (such as fraud, willful injury to person or property and other future unlawful acts).

Caps on liability under indemnification provisions can be enforceable.

Courts have the power to moderate indemnity payments agreed by the parties to a contract.

Sweden

Unless highly biased and unfair, an indemnification clause (and similar clauses under Swedish contract law) may be enforceable under Swedish law. Indemnification clauses are not uncommon in intellectual property licensing agreements.

In a business-to-consumer situation, the general principle is that the consumer's legal rights may not be limited by a trader.

Switzerland

Indemnification provisions are often used and are generally enforceable.

Taiwan, China

Express indemnities stated in contracts are recognized and generally respected. A cap on liability under indemnification provisions is generally enforceable, provided that liabilities arising from willful misconduct or gross negligence shall not be released in advance.

Ukraine

Under Ukrainian laws, the damages shall be reimbursed in full unless otherwise prescribed by the agreement and, in certain instances, by law. Pursuant to Ukrainian laws the damages include:

  • Actual damages – losses caused to the party in result of destruction or damaging of property, as well as expenses made, or need to be made, by the party for restoring of its violated right and
  • Loss of profit.

In addition, under Ukrainian law, parties to an agreement may establish the amount of penalties (eg, fine and penalty interest) to be paid in case of failure of the parties to perform certain obligations under the agreement. The amount of penalties in the agreement can be determined as a percentage of the value of unfulfilled obligations, as a fixed monetary amount, as a percentage of the value of obligations irrespective of the stage of their fulfillment or as the multiple amount to the value of goods (ie, works, services).

However, for the breach of certain types of obligations (eg, monetary obligations), the level of penalties may not exceed a statutory determined limit. Ukrainian legislation stipulates that parties may define the amount of interest for the late payment of debts under the agreement; nevertheless, the amount of penalty interest shall be calculated based on the sum of overdue debt and shall not exceed the double discount rate of the National Bank of Ukraine (NBU) effective during the period for which the penalty interest is paid. Current discount rate of the NBU is equal to 15 percent per annum (ie, double discount rate is 30 percent).

United Arab Emirates

In the UAE, a contracting party is only permitted to indemnify another contracting party for losses which are proven to have been or will be actually incurred by the other party. Successful litigants usually only recover a nominal amount in respect of their legal costs of litigation which have little bearing on their actual legal costs.

United Kingdom

Indemnities are generally enforceable as a promise to be responsible for another's loss on a pound-for-pound basis. In addition, depending on the drafting, indemnities may not be subject to a duty of mitigation on the party making such indemnity claim (albeit that case law is not consistent on this point).

Because indemnities are primary obligations, they can remain valid even if the underlying transaction is set aside for any reason. This is different to the provision of a guarantee, which, as a secondary obligation, is dependent on the primary obligation existing.

An indemnity remains subject to the usual contractual principles of offer, acceptance, intention to create legal relations and consideration just like any other contractual terms.

United States

Express indemnities stated in contracts are recognized and generally respected.

Implied indemnities are based on theories of comparative indemnity or partial indemnity or comparative equitable indemnity (ie, comparative fault of the parties). Courts do not usually imply an indemnity obligation in a contract where an express indemnity is already stated.

Express indemnities based on comparative fault are enforceable.

Indemnification provisions are generally enforceable unless they require indemnification of behavior that statutes or courts have held to be unenforceable, such as fraud, willful injury to a person or property and other future unlawful acts; indemnification for past unlawful acts is enforceable.

Indemnification provisions generally have 3 distinct obligations: defense, indemnify (ie, pay damages) and hold harmless (ie, indemnify party responsible for any other liability arising out of the claim). Indemnification is not limited to third-party claims.

Caps on liability under indemnification provisions may be enforceable.