EULA Agreements: Do They Fit All Latin American Countries? -

Material Jurisdiction Issues

Gastón Ariel MirkinPaolantonio & Legón Abogados

What are EULA?

• EULA are “End Users License Agreements”– Licensor grants to licensee a non-transferable

and non-exclusive limited license to install software

– Acceptance of EULA by clicking on Internet– Performance at licensor’s main office country– Law and courts at licensor’s main office

country

Usual clauses in EULA

• Definitions

• Purpose: license grants and restrictions

• Ownership of license and trademarks

• Limitation of liability

• Confidentiality

• Termination. Clauses that survive

• Applicable law. Jurisdiction.

Validity of EULA Execution

• Agreements are formal and not formal– Formal: deeds, corporations, PoA– EULA is a not formal agreement– It is valid the execution by clicking on Internet– Signature apostille (Hague Convention 1961)– Consumer law. Invalidation of abusive clauses

Legal Disclaimer: consult each LATAM local legislation

Foreign Law and Courts

• Parties can chose the law and courts– Exception: family matters – However, domicile of defendant and place of execution

applies to jurisdiction matters– Foreign law must be applied by local courts– Issues related to notice of lawsuit filing– Surety bond requirements (not labor - Mercosur)– Execution of foreign judgments

Foreign Law and Courts (2)– Used in international agreements (i.e., loan, bonds license,

distribution, etc.)– Recognition and enforcement of foreign judgments (art. 517

Code Proceedings)• Judgment by competent foreign court• Defendant was served with summons and had opportunity to defend• Authenticity of judgments according local laws• Judgment does not violate local public policy• Judgment is not contrary to a prior or simultaneous judgment in

Argentina

Bankruptcy / Reorganization

Enforcement of foreign decisions are subject to bankruptcy and reorganization

proceedings of defendant

Real cases of reorganization proceedings

• Fargo: acceleration of principal due

• Multicanal: method to calculate the majority in bondholders meeting

Arbitration proceedings

Arbitration is the process of bringing a business dispute before a disinterested

third party for resolution. The third party, an arbitrator, hears the evidence brought by

both sides and makes a decision. The decision is binding on the parties.

Arbitration proceedings (2)– Advantages:

• Confidentiality• Speed and economy• Skills of arbitrators• Specialized competence of arbitrators• Parties can choose place of arbitration, language,

procedures, nationality of arbitrators• International recognition of arbitral awards• Final, binding decisions• Possibility of revision by courts

Arbitration proceedings (3)Examples of arbitration forums

International Chamber of Commerce - International Court of Arbitration (ICC)

American Arbitration Association (AAA)

World Intellectual Property Organization Arbitration and Mediation Center (WIPO)

Standard ICC arbitration clause“All disputes arising out of or in connection with the present contract

shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators

appointed in accordance with the said Rules”.

Local IdiosyncrasyExamples of Idiosyncrasy Issues

Best efforts clauses in underwriting agreementsDue diligence defense in bond and shares issuances

Differences between common law and civil law

Common Law: USA, UK, Australia, Hong Kong, Ireland Civil Law: Latin-American, Europe

Civil Law: legal system inspired by Roman law. Legislation primary source of law (codes).

Common Law: case law is a major source of law, while statutes are often seen as supplemental to judicial opinions (interpreted

narrowly)

THANK YOU!

Gastón Ariel Mirkingaston.mirkin@pyla.com.ar