Click here  to download the Commercial Contracts 2019 report, published by Getting the Deal Through.

Jurisdictions covered

The following 10 jurisdictions are covered in this report:

Australia; Canada; China; Germany; Japan; Mexico; Spain; Switzerland; United Kingdom and United States.

Questions

The set of questions relating to the topic of commercial contracts and answered by the guide for each jurisdiction covered include:

Contract formation

• • Is there an obligation to use good faith when negotiating a contract?
• • How are “battle of the forms” disputes resolved in your jurisdiction?
• • Is there a legal requirement to draft the contract in the local language?
• • Is it possible to agree a B2B contract online?

Statutory controls and implied terms

• • Are there any statutory or other controls on parties’ freedom to agree terms in contracts between commercial parties in your jurisdiction?
• • Are standard form contracts treated differently?
• • What terms are implied by law into the contract? Is it possible to exclude these in a commercial relationship?
• • Is your jurisdiction a signatory to the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention)?
• • Is there an obligation to use good faith when entering and performing a contract?

Limiting liability

• • What liabilities cannot be excluded or limited by a supplier in a contract?
• • Are there any statutory controls on using financial caps to limit liability for breach of contract?
• • Are there any statutory controls on indemnities used to cover liability risks in contracts?
• • Are liquidated damages clauses enforceable and commonly used in your jurisdiction?

Payment terms

• • Are there statutory time limits for paying invoices? Is it possible to agree a different payment period?
• • Is statutory interest charged on late payments? Is it possible to agree a different rate of interest?
• • What are the civil penalties for failing to comply with statutory interest rate or late payment of invoices?

Termination

• • Do special rules apply to termination of a supply contract that will be implied by law into a contract? Can these terms be excluded or limited by including appropriate language in the contract?
• • If a contract does not include a notice period to terminate a contract, how is it calculated?
• • Will a commercial contract terminate automatically on insolvency of the other party?
• • Are there restrictions on terminating a contract if the other party is in financial distress?
• • Is force majeure recognised in your jurisdiction? What are the consequences of a force majeure event?

Subcontracting, assignment and third-party rights

• • May a supplier subcontract its obligations under the contract without seeking consent from the other party?
• • Are there any statutory rules that apply to subcontracting in your jurisdiction?
• • May a party assign its rights and obligations under the contract without seeking the other party’s consent?
• • What statutory controls apply to the assignment of rights or obligations under a supply contract?
• • How may a third party enforce a term of the contract?

Disputes

• • What are the limitation periods for breach of contract claims? Is it possible to agree a shorter limitation period?
• • Do your courts recognise and respect choice-of-law clauses stipulating a foreign law?
• • Do your courts recognise and respect choice-of-jurisdiction clauses stipulating a foreign jurisdiction?
• • How efficient and cost-effective is the local legal system in dealing with commercial disputes?
• • Is your jurisdiction a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards? Which arbitration rules are commonly used in your jurisdiction?

Remedies

• • What remedies may a court or other adjudicator grant? Are punitive damages awarded for a breach of contract claim in your jurisdiction?