ZAFAR & ASSOCIATES - LLP | Commercial Law Services - Pakistan

Commercial Law Practice in Pakistan

Commercial law is the structure of law that applies to the rights, terms, and conduct of persons and businesses engaged in commerce, merchandising, trade and involves legal problems that can occur in running of the businesses and commercial transactions.

The world is undergoing a major transformation regarding its social and economic structures and thus, the contemporary business dynamics require a clear understanding and effective implementation of contract and commercial law. Commercial law incorporates a wide range of areas: it governs the set of laws related to trade and sales, business contracts, sale of goods, banking, insurance, finance, partnership, bankruptcy, and taxation. It defines the rights and obligations of parties in different types of contracts, such as agency agreements, guarantees, and contracts for carriage, sales and purchase of goods. We provide assistance in all these matters.

Commercial law is the study of legal rules governing commercial documents, and we interpret these rules to provide a transparent view to our clients, of all the legal formalities associated with their business practices. We aim to aware them about the business dealings and transactions that they are about to conduct and also provide assistance as to how to avoid any future legal problems. Our business practices are sensitive to even the most subtle changes in the business world. We are vigilant towards the changing commercial climate, amendments in the legislation, and regulation in all jurisdictions that are involved in commercial law.

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The function of commercial law, as written by Professor Goode is to accommodate the legitimate practices and expectations of the business community in relation to their commercial dealings. The ‘expectations of the business community’ are thus the four principles of commercial law, namely, predictability, flexibility, party autonomy and efficient dispute resolution. Therefore, the fundamental goal to respond to changing commercial practices and giving it effect as intelligible legal rules that the business community can easily understand. To achieve these objectives, commercial law draws inspiration from commercial practice itself.

Commercial law can be divided into two distinct areas:

• The regulation of commercial entities by the laws of company, partnership, agency, and bankruptcy; and

• The regulation of commercial transactions by the laws of contract, tort and related fields.

Commercial Law Development

The origins of commercial law can be found in the medieval body of laws known as lex mercatoria (law merchant), that developed in the Middle Ages by the trade customs and practices of merchants traveling through Europe, as applied by specialist courts. The Lex Mercatoria code was simple, pragmatic and international in flavor. The success of the code is exemplified in the fact that by the 15th century the lex mercatoria was described as universal law throughout the world, and much of the modern commercial law salient features stem from this code. By the 19th century, lex mercatoria was fully incorporated into the common law and a considerable case law developed under it. However, this resulted in a block of commercial law that was inaccessible and inconsistent. Thus, the English Parliament embarked onto a codification journey and enacted a series of Acts each addressing a specific area of commercial law: Bills of Exchange Act 1882, Factors Act 1889 and Partnership Act 1890, SGA 1893 Marine Insurance Act 1906 (these acts are still in force today). The British commercial law’s legal development is relevant to the legal system of Pakistan, as much of the salient features of our national law stem from the British Common law.

Modern commercial law developed in the 20th century, a time period that saw significant changes in this area of law. An array of new anti-competition laws and consumer protection legislation was introduced. Till date, commercial law is evolving to meet the changing business practices of modern times.

Commercial Law in Pakistan

Pakistan having been a former British colony, derives much of its laws from the British Legal System. With slight incorporations of Shariah law into the Pakistani legal system, most national laws resemble their British predecessors. Pakistan thus follows the Common Law system as derived from British India through the Federal Government Act of 1935. Key statutes in Pakistani Commercial law include The Contract Act, 1872, as revered by Companies Regulation 1984 as replaced by the Company Act 2017. Further key statutes include the Sales of Good Act 1930, Partnership Act 1932, Negotiable Instrument Act, 1881, Limited Liability Partnership Act 2017.

Realm of Commercial Legislations in Pakistan

The Contract Act, 1872

The Contract Act 1872 deals with the law relating to contracts in Pakistan. The Act is based on the principles of English Common Law. Key features under the Act are:

• Agreement: Every promise and every set of promises, forming the consideration for each other, is an agreement. ~ Sec.2(e)

• Contract: An agreement enforceable by law is a contract ~ Sec.2(b)

• Promisor: The person making the proposal is called the "promisor" ~ Sec.2(c)

• Promisee: the person accepting the proposal is called the "promisee" ~ Sec.2(c)

• Consideration: When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise ~ Sec.2(d)

The Negotiable Instrument Act, 1881

The legislation deals with promissory notes, cheques or bill of exchange etc. Key features under the Act are:

• Promissory Note: A "promissory note" is in an instrument in writing (not being a bank-note or a currency note) containing an unconditional undertaking signed by the maker, to pay on demand or at a fixed or determinable future time] a certain sum of money only to, or to the order of a certain person, or to the bearer of the instrument.

• Bill of Exchange: A "bill of exchange" is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay on demand or at a fixed or determinable future time] a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument.

The Sale of Goods Act, 1930

The Sale of Goods Act, 1930 was enacted on the 1st of July, 1930. The legislation defines and deals with contracts where a seller transfers or agrees to transfer the property in the goods to the buyer for price. The act also deals with implied terms, transfer of title, effects of breach of a sale of goods contract and the remedies available to commercial parties. Some key features under the Act are:

• Contract of Sale of Goods: A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another.

• Price: The price must be in money, either paid or promised (payment by cheque, credit card or other forms of money transfer) price may be fixed in the contract, left to be determined in a manner agreed by the contract, by some measurement (e.g., weight), or by a third party.

• Personal Chattels: Goods ‘all personal chattels other than things in action’. Therefore, goods must be tangible rather than intangible items.

The Companies Act, 2017

The Companies Act 2017 reformed and re-enacted the law relating to companies and for matters connected with it. The Act repealed the Companies Ordinance 1984 (save Part VIIIA consisting of sections 282A-282N). Key features under the Act are:

• Company: means a company formed and registered under this Act or the company law ~ Sec. 2(17)

• Company Law: means the repealed Companies Act, 1913 (VII of 1913), Companies Ordinance, 1984 (XLVII of 1984), Companies Ordinance, 2016 (VI of 2016) and also includes this Act unless the context provides otherwise ~ Sec. 2(18)

Significance of Commercial Clientele in Pakistan

We being a team of commercial law attorneys, it is imperative to understand the clients’ needs, to negotiate on their behalf, to have commercial awareness and most importantly, be effective and efficient in time and case management. Our primary focus is to cater the demands of our clients and our team works effortlessly to facilitate them in every possible way by providing most suitable solution to their problems.

We being a team of commercial law attorneys create new entities in the business and get the required documentation done with the established institutions. Businesses may exist in the form of a corporation, partnership, limited-liability company, or any other entity. The business can also be customized to suit the specific needs of the clients. In the case of this customized business, the process will be initiated through the specific rules and regulations interpreted from the commercial law. This will help the businesses avoid being held liable.

Moreover, we facilitate our client by drafting legal agreements. There are numerous documents involved in commercial transactions, and commercial law dictates the management of commercial agreements. We ensure that the agreements are correct and legally drafted by the business. Generally, as the owner of the business you are able to carry out transactions however certain transactions can be complex and require reference to some laws and regulations. Transactions such as Internet commerce or security regulation require legal advice before commencing them so that they do not affect the business negatively. Our firm provides a clear insight into various processes and into different transactions. We provide the client with the rational approach, and eliminate the consequences of any emotional bias in the decision-making process. Furthermore, it is our work to thoroughly examine the business process to avoid any future lawsuits and mitigate any risks associated with clients' business practices which may cost the business. We provide guidance for businesses to follow in each and every type of process and transaction. It minimizes business’s exposure to any form of risk, or of litigation by assisting the proper business process and transaction structure.

Commercial Disputes & Litigation in Pakistan

All commercial and business laws have their own legal issues. However, the most common one is violation of contracts. There are several other issues such as advertising disputes and contradictions, marketing term violation, unfair trade practices, deficiency in service, consumer complaints, and leakage of trade secrets, just to name a few. At certain instances, a contract between two parties may affect the rights of someone else who is not a party to the contract i.e. third party. Similarly, sometimes, a dispute may involve violation of more than one law. We have special expertise in resolving such complex issues. In addition to researching on our client’s case in depth and strengthening their legal position, we also help you with filing a lawsuit and representing them in the court. In the case of litigation, we start our work by gathering all necessary information and supporting documents. We review each case thoroughly and focus on the important facts of the case. Our qualified team then researches the relevant case law and former precedents, prepare pleadings and arguments, and attend regular briefing sessions with the clients. Then represent the clients in the court for litigation as per need.

Commercial law provides with a number of options to resolve a dispute, depending upon the type of violation. The common remedies in commercial disputes includes, monetary compensation for losses incurred, rescission of a contract, injunction and other equitable remedies, and mediation, reconciliation, and arbitration. Remedy depends on whether the breaching party is a business entity or an individual. In the case, where a number of people are affected may give rise to class action lawsuit. Disputes involving commercial law can be quite complex and complicated, and thus having a qualified business attorney to deal with the legal issues, becomes essential for the business.

Commercial Transactions in Pakistan

Our practices include dealing with all complex transactions, mergers, asset acquisitions and sales, joint ventures, leasing transactions and financing, bankruptcy related transactions, and business startups, preparation of all types of contracts. Business agreements are crucial for any business’s growth. Terms of the contract are often complex and complicated; we work, to interpret those for our client and to create healthy commercial relationships between our client and any organization our client is working with. Our goal is to protect business interest and to cater their day-to-day commercial dealings needs (for example competition law issues, protection of intellectual property rights). We have a specialist team to work in these areas. Our objective is to bring ease to the client, achieve client’s goals within time and budget. In commercial business practices, speed tends to be the important underlying mechanism. The speed of events works to take advantage of price fluctuations and working effectively you can achieve distinctive profits and that every trader can conclude many trade agreements, and therefore our firm’s primary focus is to value the time of our client and provide them with best possible results. Our work is not limited to certain types of firms, instead we cater all sizes of firms working in different kinds of institutions. Our service is available for local, national and international clients.

Our Expertise

Clients that come to commercial law firms include large businesses, governments, banks, insurance companies and many more. ZA-LLP has a strong and broadly based international commercial law practice. We have a team of lawyers who specialise in drafting, reviewing and negotiating commercial agreements. These range from strategic alliances to substantial one-off contracts (e.g. outsourcing, systems management and project development agreements) to repeat contracts and umbrella contracts with sub contractors and suppliers. The commercial law team has a particular focus on the way in which commercial services are brought to commercial market and promoted and has considerable expertise in the fields of marketing and sales promotion.

Our expertise in commercial law also gives our clients a significant advantage in more complex commercial transactions and de-mergers as, increasingly, there is a need for advice on strategic business contracts in the context of a corporate deal, for example to deal with transitional services issues or on-going supply arrangements. Specialist commercial law expertise combined with sectoral experience results in an in-depth understanding of the key business issues which need to be managed from a legal perspective which can be particularly helpful to private equity houses and investment banks.

Our Approach

Our aim is to always to add value to our clients' businesses by assisting them to achieve their commercial objectives in the most practical way using our expertise and commercial awareness. We are particularly conscious of the need to protect and promote clients' legal interests effectively in the context of urgent and sensitive commercial situations. Our team is familiar with the range of specialist issues which can arise in day-to-day commercial dealings, such as competition law issues and the need to protect intellectual property rights. We work closely with other experts in the firm and are used to drawing together a number of specialist issues to provide the effective overall legal solutions which deliver the commercial objectives.

The commercial law counseling group provides a complete range of commercial law services to ZA-LLPs' local, national and international clients. The group handles a variety of complex transactions, including mergers, asset acquisitions and sales, joint ventures, leasing transactions and financing, bankruptcy related transactions, and business startups, as well as the preparation of contracts of all types. In addition, because companies law is often selected as the governing law for major national and international transactions, the Group works with both in-house and regular outside counsel in the structuring and documenting of such transactions and provides legal opinions required at closing.

When organizations enter into relationships with lenders and other business partners, the terms of those agreements are critical and often complex. ZA-LLPs' Commercial Lending, Banking, Bond, Creditors' Rights and Bankruptcy Practice Group provides guidance that produces mutually beneficial relationships across the entire spectrum of commercial relationships.

We represent nationally and locally prominent commercial banks, finance companies, insurance companies and other lenders, as well as borrowers in connection with all aspects of secured and unsecured financing arrangements of all sizes. Those arrangements include:

• Revolving and term loans;

• Secured transactions (including asset based lending, chattel paper financing, floor plan financing and aircraft and vessel financing);

• Commercial mortgage loans;

• Intercreditor agreements and loan syndications and participations;

• Seller-financed transactions;

• Leveraged buy-outs;

• Venture capital financing;

• Letters of credit and reimbursement agreements;

• Foreign exchange transactions;

• Commercial leasing and equipment financing;

• Leveraged leases;

• Agriculture finance;

• Purchase of individual loans and loan portfolios;

• Interest rate swaps and other derivative transactions; and

• Sales of accounts and other off-balance sheet financing.

Our focus on strategic issues and our familiarity with various industries allows us to assist our clients in negotiating terms that protect them throughout the lending relationship.

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Our Core Competencies

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