Commercial Law in Madagascar

In addition to the company law and insolvency law reforms (see our page relating to Malagasy company law), Malagasy commercial law has undergone several reforms in 2004 and 2006, of which the most important are the reform on « fonds de commerce » (businesses) law, securities law, competition law or commercial intermediaries law.

Law No. 2003-038 of 03 September 2004 relating to « fonds de commerce » was enacted to consolidate, modernize and supplement the provisions applicable to « fonds de commerce » (prior to the enactment of this law, « fonds de commerce » law was very sparse and old – the main applicable text was issued in 1909 – and only addressed the sale and pledge of a business aspects).

Law No. 2003-041 of 03 September 2004 relating to securities redesigned the rules relating to securities and was in this regard inspired by OHADA works, the French and Quebec Civil Codes, or the American Uniform Commercial Code. While introducing in Malagasy law some concepts through which the property can be used as collateral (such as trustee transfers, retention of ownership or leasing), this law also addresses some traditional Malagasy institutions such as fehivava (which is a loan agreement secured by the delivery of the concerned immovable property to the “fehivahist” creditor who enjoys it until the repayment of the loan).

Law No. 2005-020 of 27 July 2005 relating to competition has been put in place in order to support the withdrawal of the Malagasy State as an economic agent in the areas of production, trade and services, and to set up a legislative and regulatory framework that would foster the emergence of a market economic system while preventing the consecration of a « savage liberalism ». This law addresses unfair competition acts (such as “denigrement”, parasitism, etc …), anti-competitive practices (such as abuse of economic dependence, “ententes”, abuse of a dominant position, or monopolies), and creates a Competition Council with broad powers (including consultation and proposal powers as part of the drafting of official texts relating to competition law, as well as powers to control compliance with the dispositions of Law No. 2005-020 and, if necessary, impose sanctions).

– Finally, Law No. 2006-017 of 20 July 2006 relating to commercial intermediaries was drafted following the realization that the rules applicable to “mandats” (agencies) were not sufficiently defined in the Civil Code as to “mandats” with commercial purposes, and that there was a need for the establishment of a clear and modern legislation in order to regulate professions grouped under the name ofcommercial intermediaries. Thus, this law, which is inspired by OHADA works and the provisions of the international Hague Convention of 1978 on the law applicable to agency and representation, contains provisions common to all the commercial intermediaries’ professions, as well as more specific rules applicable to commission contracts, brokerage contracts and to the commercial agency profession.

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Law No. 2003-038 of 03 September 2004 relating to « fonds de commerce », as modified by Law No. 2014-015 of 21 August 2014 (French version)
Law No. 2003-041 of 03 September 2004 relating to securities, as modified by Law No. 2014-016 of 21 August 2014 (French version)