Brazil: Competition Policy And Life Cycle Management: The Brazilian Experience

Last Updated: 15 June 2016
Article by Ana Paula Martinez

1 OVERVIEW OF COMPETITION LAW AND PRACTICE IN BRAZIL

At the administrative level,1 competition law and practice in Brazil are governed by Law No. 12,529/11, which entered into force on 29 May 2012 and replaced Law No. 8,884/94. The Administrative Council for Economic Defense's (hereinafter, 'CADE') structure includes a Tribunal composed of a President and six Commissioners, a Directorate-General for Competition (hereinafter, 'DG') and an Economics Department. The DG, which replaced the former Ministry of Justice's Secretariat of Economic Law (the so-called SDE), is the chief investigative body in matters related to anticompetitive practices. CADE's Tribunal is responsible for adjudicating the cases investigated by the DG – all decisions are subject to judicial review.2 There are also two independent offices within CADE: CADE's Legal Services, which represents CADE in Court and may render opinions in all cases pending before CADE; and the Federal Public Prosecutor's Office, which may also render legal opinions in connection with all cases pending before CADE.

The basic framework for abuse of dominance in Brazil is set by Article 36 of Law No. 12,529/11. The law prohibits acts 'that have as [their] object or effect' (1) limitation, restraint or, in any way, harm to open competition or free enterprise; (2) control over a relevant market of a certain good or service; (3) an increase in profits on a discretionary basis; or (4) engagement in market abuse. Article 36 specifically excludes from potential violations, however, the achievement of market control by means of 'competitive efficiency'. Under Article 2 of the law, practices that take place outside the territory of Brazil are subject to CADE's jurisdiction, provided that they produce actual or potential effects in Brazil.

Article 36, section 3o, contains a non-exclusive list of acts that may be considered antitrust violations provided they have as their object or effect the above-mentioned acts. The listed practices include various types of horizontal and vertical agreements and unilateral abuses of market power. Enumerated vertical practices (they could be abusive if imposed unilaterally) include RPM and other restrictions affecting sales to third parties, price discrimination and tying. Listed unilateral practices encompass both exploitative and exclusionary practices, including refusals to deal and limitations on access to inputs or distribution channels, and predatory pricing.

CADE Resolution No. 20/99,3 in its Annex II, provides for the review of unilateral conduct under the rule of reason, as it might have pro-competitive effects. The Brazilian competition agency should, in theory, consider efficiencies alleged by the parties and balance them against the potential harm to consumers. In practice, however, there has been no case in which CADE concluded that harmful conduct was legal in view of the efficiencies derived from the conduct.

Brazil's competition law applies to corporations, associations of corporations and individuals. For corporations, fines range between 0.1% and 20% of the company's or group of companies'4 pre-tax turnover in the economic sector affected by the conduct in the year prior to the beginning of the investigation.5

The law further provides that directors and other executives found liable for anticompetitive behaviour may be sanctioned from 1% to 20% of the fine imposed against the company. Under the law, individual liability for executives is dependent on proof of guilt or negligence, which makes it hard for CADE to find a violation on the part of the company's executives. Historically, while CADE has been investigating the involvement of individuals in cartel cases, it has rarely done so in abuse of dominance cases. Other individuals and legal entities that do not directly conduct economic activities are subject to fines ranging from BRL 50,000 to BRL 2 million.

Apart from fines, CADE may also: (i) order the publication of the decision in a major newspaper at the wrongdoer's expense; (ii) prohibit the wrongdoer from participating in public procurement procedures and obtaining funds from public financial institutions for up to five years;6 (iii) include the wrongdoer's name in the Brazilian Consumer Protection List; (iv) recommend to the tax authorities to block the wrongdoer from obtaining tax benefits; (v) recommend to the IP authorities to grant compulsory licences of patents held by the wrongdoer; (vi) order a corporate spin-off, transfer of control, sale of assets; (vii) prohibit an individual from exercising market activities on its behalf or representing companies for five years.7 The law also includes a broad provision allowing CADE to impose any 'sanctions necessary to terminate harmful anti-competitive effects'. CADE's wide-ranging enforcement of such provision may prompt judicial appeals.

CADE is becoming globally known for its aggressive approach in enforcing Brazil's competition law. There are around fifty pending investigations for alleged abuse of dominance, including allegations of sham litigation in the pharmaceuticals market. In practice, CADE has been imposing fines of up to 5% of the company's turnover in connection with abuse of dominance violations.8

2 ALLEGED ANTICOMPETITIVE PRACTICES IN THE PHARMACEUTICAL INDUSTRY REVIEWED BY CADE: DRAWING THE LINE FOR LIFE CYCLE MANAGEMENT STRATEGIES

Before discussing the cases that have been reviewed by CADE in connection with alleged anticompetitive practices in the pharmaceutical industry, it is important to note that the Anglo-American concept of binding judicial precedent (i.e., stare decisis) is virtually non-existent in Brazil, which means that CADE's Commissioners are under no obligation to follow past decisions in future cases. Under CADE's Internal Regulations, legal certainty is only achieved if CADE rules in the same way at least ten times, after which they codify a given statement via the issuance of a binding statement.9

Regarding alleged anticompetitive practices in the pharmaceutical industry, the vast majority of cases relate to unilateral practices as opposed to horizontal agreements.10 Below is presented an overview of key cases that should be taken into account by pharmaceutical companies when devising their life cycle11 management strategies for drugs marketed in Brazil. Similarly to other jurisdictions, there is an increasing number of cases being reviewed by CADE and even an attempt to conduct a sector inquiry (2009/201012), following the initiatives of the European Commission and the US Federal Trade Commission (the latter focusing more on the pay-for-delay agreements13).

2.1 Boycott against Generic Drugs

In 1999, Brazilian Congress passed the so-called Law on Generic Drugs. The new law contained several provisions aimed to promote competition, such as (i) doctors with the public health system shall include in the prescription the active ingredient rather than the originator product; (ii) government shall organize bids listing the active ingredient rather than the originator product; (iii) pharmacists may automatically substitute prescriptions for a brand to a generic; (iv) entry price for generics has to be at least 35% under the price of the originator product (prices are regulated by the Government); and (v) originator companies shall supply samples to generic competitors to allow them to produce generics.

According to CADE, nineteen branded companies allegedly met in July 1999 and agreed to boycott distributors that would distribute generics and engaged into a public campaign against the use of generics. In 2005, CADE sanctioned branded pharmaceutical companies to pay 1%-2% of their turnover in the year before the initiation of the investigation.14 In 2011, a federal judge reversed CADE's decision based on the lack of evidence of anticompetitive conduct,15 which was confirmed by the second instance court in March 2015. CADE has appealed this decision to the superior Courts and a final decision is pending. An interesting aspect of the case was the sanctioning of Merck only in August 2014, after lengthy discussions, for having taken part in the same meeting back in 1999 and not having voiced out its disagreement, which, according to CADE, amounted to tacit collusion.

2.2 Extension of Pipeline Patent Protection

Brazilian Law 5,772/1971 explicitly prohibited drug patenting. On the contrary, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) created an obligation for Brazil to protect drug patents, with transitional rules ('pipeline' patents). The 'pipeline' allowed patent requests to be automatically approved based on the date of the first foreign filing; and the maximum period for patent protection is twenty years under Brazilian law.

A number of branded pharmaceutical companies resorted to judicial Courts to extend their protection, defending theories like only the first valid foreign filing should be considered for the purposes of determining the duration of the patent protection. The issue was settled in April 2010, when the Superior Court of Justice decided that the date of the first foreign filing is the one valid, even if the filing was later withdrawn (Viagra case).16

In this context, the Brazilian association of generic drugs (called Pro-genericos17) filed a complaint before the competition authorities in 2007 against Sanofi-Aventis claiming that it has abused its market power by presenting a request to extend a 'pipeline' patent related to Plavix, a drug directed to prevent blood clots after a heart attack/stroke.18 CADE dismissed the case in 2012, concluding that the IP Law provisions allow two possible interpretations and the one argued by Sanofi-Aventis was also reasonable even though it ultimately failed in Courts. In this case, CADE has indicated that a company with a dominant position is entitled to take reasonable steps to protect its intellectual property rights.

2.3 Refusal to Deal

Under the current regulatory framework, originator companies are required to supply samples to generic competitors to allow them to produce generics.

In 2011, Pro-genericos filed a complaint against Janssen Cilag claiming that it has directed its distributors not to supply samples of the blood-cancer drug Velcalde to generic companies (Eurofarma).19 Although recognizing that taking measures not to supply the originator drugs to competitors would amount to an antitrust violation, CADE dismissed the case in 2013 stating that no evidence of illegal conduct was found in connection with that particular case. To support this conclusion, CADE highlighted that Eurofarma acquired 211 samples of the originator drug in 2011.

2.4 Extension of EMR Due to New Use

In 2007, Pro-genericos filed a complaint against Eli Lilly do Brasil and Eli Lilly and Company for allegedly abusing their rights regarding Gemzar, a drug to treat cancer, to prevent generics entry.20 Among other alleged practices, Eli Lilly filed six different claims before the judicial Courts to enforce its rights and required one additional five-year period of exclusive marketing rights given the discovery of a new use for the drug. An injunction ensured an additional protection for eight months, and for three months the pharmaceutical company Sandoz was not allowed to offer the competing drug Gemcit in the market. According to CADE, during this period, the price offered by Eli Lilly in public bids was BRL 540.00 more than double of the price offered by the same Eli Lilly following the reversal of the injunction (BRL 189.00).

In June 2015, CADE's Tribunal found that Eli Lilly abused its rights by presenting misleading information to courts, with 'serious harm to public health and economy'. According to the agency, the drug maker did not clearly explain before Courts that the request for a patent was never granted, an omission that was considered to be strategic and malicious, enabling the company to exclude competitors from the market.

According to the Reporting Commissioner:

the company behaved in an anticompetitive manner by presenting multiple claims before several courts, omitting information to obtain artificially the monopoly in the sale of the medicine, besides unduly obtaining an exclusive right to sell the drug.

CADE imposed a fine of BRL 36.6 million – when calculating the fine, CADE doubled the expected fine in view of recidivism considering Eli Lilly's sanction in the alleged cartel against generic drugs.

In its decision, CADE stated that 'measuring market share is irrelevant in sham litigation cases, where the success of a judicial claim may be sufficient to exclude competitors from the market'.21 This position might be stricter than the one adopted by foreign competition agencies.

Eli Lilly has filed an appeal and a final decision is pending.

There is another case worth mentioning with a different outcome. In 2005, Eurofarma filed a complaint before Brazil's competition agencies claiming that Aventis Pharma abused its rights when trying to secure exclusive marketing rights over docetaxel trihidratado, a drug used to treat breast cancer.22 In 2013, CADE dismissed the case stating that the evidence presented was not enough for the authority to find a violation, and that the request regarding the exclusive marketing rights followed the IP agency procedures.

2.5 Abuse of Data Protection Rights

In 2010, Pro-genericos filed a complaint against Lundbeck claiming that it has allegedly abused its data protection rights regarding the antidepressant Lexapro to prevent generic entry.23 In December 2011, the investigative arm of CADE opened a formal investigation against Lundbeck. According to Pro-genericos, Lundbeck, through frivolous judicial claims, aimed to prevent Brazil's FDA from using data related to Lexapro's files (Lexapro data package) to issue authorization for generic drugs, increasing the entry costs for generic drugs. The investigation is still pending.

There is a similar case pending against Genzyme initiated by Germed in 2009.24 According to Germed, Genzyme alleged abused its data protection rights regarding Renagel, a drug used to reduce levels of phosphorus in people with kidney disease who are on dialysis. After six years acting alone in the market, Genzyme started to face competition from EMS and Germed, following the registration of their drugs at Brazil's FDA. Subsequently, Genzyme filed judicial claims raising rivals' costs according to Germed. In December 2011, the investigative arm of CADE opened a formal investigation against Genzyme. According to public available information, in 2013 Genzyme tried to settle the judicial claim with EMS/Germed, which was subject to the approval of Brazil's FDA.25 The investigation is still pending.

2.6 Ring-Fencing Practices

In 2011, Pro-genericos filed a complaint against AstraZeneca for allegedly abusing its rights due to patent violation claims against Germed/Brazil's FDA regarding a number of blockbuster drugs, namely Crestor (cholesterol drug), Nexium (acid reflux relief drug), and Seroquel26 (drug for schizophrenia, bipolar disorder and major depressive disorder). AstraZeneca was accused of engaging into ring-fencing practices regarding its IP holdings to deter generic entry, as well as sham litigation practices before courts. The investigation is still pending.

2.7 Launch of Second Generation Drugs

In 2008, Pro-genericos filed a complaint against Abbott for allegedly abusing its rights due to (i) patent violation claims against Cristalia Produtos Quimicos e Farmaceuticos regarding anesthetics and (ii) the launch of a new antiviral drug (Meltrex, which replaced Kaletra), not considered to be an improvement over the original drug.27 The allegation regarding the latter practice concerns shifting consumers from an old version of a drug to a new version, preventing or creating barriers to generic drugs to compete. The investigation is still pending.

3 EXPECTED FUTURE DEVELOPMENTS

CADE's case law in the pharmaceutical sector is not straightforward; cases have a complex set of facts which makes it difficult to extract a safe-harbour rule. Some cases seem to point to an enhanced scepticism or outright disregard for the role economic analysis in connection with unilateral practices. The reason this trend is counterintuitive and somewhat paradoxical in light of the larger role currently played by economics in antitrust analysis is obvious: standard economic analysis would recommend caution against 'over-enforcement' regarding unilateral conduct, especially considering an area so dependent on research and development.

Still, it seems CADE has not been (and will continue not to be) shy about intervening, even though there is a fair amount of cases involving life cycle management strategies that have also been dismissed by the agency. The pending cases provide a unique opportunity for CADE to shed light on when life cycle management strategies in the pharmaceutical sector can amount to an antitrust violation. Market players need to take into account three aspects when devising their life cycle management strategies regarding products offered in Brazil. The first one is that the association of generic drug makers is very active in Brazil and has been bringing a significant number of complaints before CADE since 2007. The other aspect is that CADE is understaffed and investigations generally last for over five years. This means that even when there is no violation, an investigation could pend before the agency for numerous years, with all the associated uncertainty and costs – take for example the case against Aventis Pharma, which took eight years to be dismissed by CADE. The final aspect is that CADE has been extremely aggressive when sanctioning anticompetitive conduct, not limiting the sanctions to severe fines but also prohibiting sanctioned parties from benefiting from tax incentives, for examples. The combination of those three aspects requires market players in Brazil to be extra-cautious.

Furthermore, private antitrust enforcement in Brazil has been on the rise over the past five years.28 This may be due to reasons such as the global trend of antitrust authorities encouraging damage litigation by potential injured parties; the growing number of infringement decisions issued by CADE; as well as the increasing general awareness of competition law in Brazil. There are already damage claims filed by generic drugs against originator companies pending before judicial Courts and this could represent an additional area of concern when dealing with non-ordinary life cycle management strategies in Brazil.

Footnotes

1. Brazil's antitrust system features both administrative and criminal enforcement. The administrative and criminal authorities have independent roles and powers, and may cooperate on a case-by-case basis. Private enforcement actions may also be initiated through the judicial Courts by aggrieved competitors or damaged parties. Although abuse of dominance could also be considered a criminal violation under Art. 4 of Law No. 8,137/90, punishable in the case of individuals, but not corporations, by a criminal fine and imprisonment from 2 to 5 years, no criminal sanction has been imposed to date against individuals for abuse of dominance practices.

2. On average, judicial Courts confirm over 70% of CADE's decisions.

3. CADE is yet to issue regulation under the 2011 law setting formal criteria for the analysis of alleged anticompetitive conduct. The agency has been relying on secondary legislation issued under the previous law.

4. The wording of the new provision lacks clarity and creates legal uncertainty regarding the scope of its application. CADE was expected to issue regulation defining the criteria that would be applied to distinguish when fines would be imposed against the company, the group of companies, or the conglomerate, but has not yet done so. According to Art. 45 of Brazil's antitrust law, the following shall be taken into account by CADE when setting fines: (i) level of seriousness of the infringement; (ii) good faith of the defendant; (iii) gain obtained or aimed by the defendant; (iv) whether the conduct has been consummated or not; (v) level of actual or potential harm to competition, Brazilian economy, consumers or third parties in general; (vi) detrimental economic effects caused by the conduct in the market; (vii) economic situation of the defendant; and (viii) recidivism.

5. CADE's Resolution No. 3/2012 broadly defines 144 'sectors of activity', which includes, among others, beverages and agriculture. CADE may resort to the total turnover, whenever information on revenue derived from the relevant 'sector of activity' is unavailable. Moreover, the fine may be no less than the amount of harm resulting from the conduct. Fines imposed for recurring violations must be doubled.

6. In 2012, CADE has, for the first time, imposed this sanction in connection with an abuse of dominance case (see Case No. 08012.001099/1999-71; Defendants: Comepla Industria e Comercio et al.; Reporting Commissioner: Carlos Ragazzo; adjudication date: 23 May 2012).

7. The idea behind this provision was to deal with situations in which CADE prohibited the wrongdoer from participating in public procurement procedures and obtaining funds from public financial institutions for up to five years. To avoid this penalty, the parties simply set up a new company and resumed activities in the same sector without being subject to the restrictions imposed by CADE's decision.

8. In absolute terms, the record fine for a unilateral practice was BRL 352 million (2009), later reduced through a judicial settlement to BRL 229 million (2015).

9. To date, CADE has issued nine binding statements, all related to merger review but one (Binding Statement No. 7), which provides that it is an antitrust infringement for a physicians' cooperative holding a dominant position to prevent its affiliated physicians from being affiliated with other physicians' cooperatives and health plans.

10. There are some cases involving bid-rigging practices. See Cases No. 08012.002222/2011-09, 08700.001640/2013-84, 08012.008821/2008-22.

11. Life cycle could be defined as the period from the product's first launch into the market until its withdrawal.

12. The investigative agency under the previous law, SDE, sent out questionnaires to approximately forty originator companies questioning on practices related to patent extensions.

13. Different institutional frameworks result in different types of practices considered by the originator companies to extend the life cycle of a given drug. For example, the fact that in Brazil there is no exclusivity period for the first generic drug to enter the market make it less likely to have pay-for-delay agreements. The same is true for delisting practices, under investigation by the UK competition agencies.

14. Case No. 08012.009088/1999-48. Defendants: Abbott Laboratorios do Brasil Ltda., Eli Lilly do Brasil Ltda., Industria Quimica e Farmaceutica Schering Plough S.A., Produtos Roche Quimica e Farmaceutica S.A., Pharmacia Brasil Ltda. (sucessora de Searle do Brasil Ltda. e, posteriormente, Monsanto do Brasil Ltda.), Laboratorio Biosintetica-Ltda., Bristol Myers Squibb Brasil S.A., Aventis Pharma Ltda., Bayer S.A., Eurofarma Laboratorios Ltda., Akzo Nobel Ltda., Glaxo Wellcome S.A., Merck Sharp & Dohme Farmaceutica e Veterinaria Ltda., AstraZeneca do Brasil Ltda., Boehringher Ingelheim do Brasil Quimica e Farmaceutica Ltda., Aventis Behring Ltda. (sucessora de Centeon Farmaceutica Ltda.), Sanofi-Synthelabo Ltda. (sucessora de Sanofi Winthrop Farmaceutica Ltda.), Laboratorios Wyeth-Whitehall Ltda., Janssen Cilag Farmaceutica Ltda. e Byk Quimica Farmaceutica Ltda. Adjudication date: 18 Oct. 2005.

15. Case No. 2007.34.00.043980-0. Federal Judge Itagiba Catta Preta Neto.

16. REsp 731.101. Reporting Justice Joao Otavio de Noronha.

17. http://www.progenericos.org.br/.

18. Case No. 08012.013624/2007-44. Defendant: Sanofi-Aventis Farmaceutica Ltda.

19. Case No. 08012.000841/2011-51. Defendant; Janssen Cilag Farmaceutica Ltda.

20. Case No. 08012.011508/2007-91. Defendants: Eli Lilly do Brasil Ltda., and Eli Lilly and Company. Reporting Commissioner: Ana Frazao.

21. Brazil's Competition Law provides that a dominant position is presumed when 'a company or group of companies' controls 20 per cent of a relevant market. Article 36 further provides that CADE may change the 20 per cent threshold 'for specific sectors of the economy', but the agency has not formally done so to date. The 20% threshold is relatively low compared with practices in other jurisdictions, especially the US and the EU.

22. Case No. 08012.004393/2005-16. Defendants: Aventhis Pharma S.A., and Aventhis Pharma Ltda. Adjudication date: 20 Feb. 2013.

23. Case No. 08012.006377/2010-25. Defendants: Lundbeck A/S, and Lundbeck Brasil Ltda.

24. Case No. 08012.007147/2009-40. Defendants: Genzyme do Brasil Ltda., and Genzyme Corporation.

25. See Case No. 2009.34.00.018712-0/DF. http://portal.anvisa.gov.br/wps/wcm/connect/9be0ef 0042e1d0ceb595bf348b3626d1/REUNI%C3%95ES+EXTERNAS+-+2013+-+Victor+Valen% C3%25. See Case No. 2009.34.00.018712-0/DF.MOD=AJPERES.

26. Case No. 08012.001693/2011-91. Defendants: AstraZeneca AB, and AstraZeneca do Brasil Ltda.

27. Case No. 08012.011615/2008-08. Defendants: Abbott Laboratorios do Brasil Ltda., and Abbott Laboratorios Inc.

28. Pursuant to Art. 47 of Brazil's Competition Law, victims of anticompetitive conduct may recover the losses they sustained as a result of a violation, apart from an order to cease the illegal conduct. A general provision in the Brazilian Civil Code also establishes that any party that causes losses to third parties shall indemnify those that suffer injuries (Art. 927). Plaintiffs may seek compensation in the form of pecuniary damages (for actual damage and lost earnings) and moral damages. Under recent case law, companies are also entitled to compensation for moral damage, usually derived from losses related to their reputation in the market.

 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions